Aldridge v. Berryhill

Filing 20

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

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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JUDITH A.,
Case No. 3:17-cv-05950-TLF

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Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY

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ORDER REVERSING AND
REMANDING THE
COMMISSIONER’S DECISION TO
DENY BENEFITS

Defendant.

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Plaintiff appeals the Commissioner’s denial of her applications for disability insurance

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and supplemental security income (SSI) benefits. The parties have consented to have this matter

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heard by the undersigned Magistrate Judge. 28 U.S.C. § 636(c), Federal Rule of Civil Procedure

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73; Local Rule MJR 13. For the reasons set forth below, the Commissioner’s decision is reversed

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and remanded.

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On September 4, 2014, plaintiff applied for disability insurance and SSI benefits. Dkt. 10,

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Administrative Record (AR) 19. She alleges she became disabled beginning December 21, 2013.

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Id. The Commissioner denied the applications on initial administrative review and on

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reconsideration. AR 19.

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Following a hearing, an administrative law judge (ALJ) employed the Commissioner’s

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five-step sequential evaluation process to find plaintiff could perform other jobs existing in

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significant numbers in the national economy at step five of that process, and therefore that she

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was not disabled at that step. AR 19-35. Plaintiff appeals that decision, seeking reversal and

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remand for further administrative proceedings.

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DISCUSSION
A.

STANDARD OF REVIEW
The Court will uphold an ALJ’s decision unless it is: (1) based on legal error; or (2) not

supported by substantial evidence. Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017).

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Substantial evidence is “‘such relevant evidence as a reasonable mind might accept as adequate

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to support a conclusion.’” Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017) (quoting

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Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988)). This requires

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“more than a mere scintilla,” though “less than a preponderance” of the evidence. Id. (quoting

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Desrosiers, 846 F.2d at 576).

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The ALJ is responsible for determining credibility, and for resolving any conflicts or

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ambiguities in the record. Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th

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Cir. 2014). If more than one rational interpretation may be drawn from the evidence, then the

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Court must uphold the ALJ’s interpretation. Trevizo, 871 F.3d at 674-75. Where the evidence is

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sufficient to support more than one outcome, the Court should uphold the ALJ’s decision.

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Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th Cir. 2008). The Court,

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however, may not affirm by locating a quantum of supporting evidence and ignoring the non-

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supporting evidence. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007).

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The Court must consider the administrative record as a whole. Garrison v. Colvin, 759
F.3d 995, 1009 (9th Cir. 2014). The Court also must weigh both the evidence that supports, and

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evidence that does not support the ALJ’s conclusion. Id. at 1009. The Court may not affirm the

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decision of the ALJ for a reason upon which the ALJ did not rely. Id. at 1010. Only the reasons

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the ALJ identified are considered in the scope of the Court’s review. Id.

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B.

ISSUES FOR REVEW

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1. Did the ALJ err in evaluating the medical evidence?

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2. Did the ALJ err in evaluating plaintiff’s testimony?

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3. Did the ALJ err in evaluating the lay witness evidence?

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4. Did the ALJ err in assessing plaintiff residual functional capacity?

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5. Did the ALJ err in finding plaintiff could perform other jobs?

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C.

DISCUSSION

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1.

Evidence of Opinions re: Mental and Physical Conditions and Impairments

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An ALJ must give “clear and convincing” reasons supported by substantial evidence to

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reject a treating or examining physician’s uncontradicted opinion. Revels v. Berryhill, 874 F.3d

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648, 654 (9th Cir. 2017). Even where contradicted, the ALJ may reject an examining physician’s

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opinion only by providing “specific and legitimate” reasons that are supported by substantial

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evidence. Id. The same applies to the opinion of an examining psychologist. Popa v. Berryhill,

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872 F.3d 901, 906 (9th Cir. 2017) (citing Lester v. Chater, 81 F.3d 821, 830-31 & n.7 (9th Cir.

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1995) (opinions of “physicians” include those from psychologists and other “acceptable medical

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sources” 1)).
The ALJ can meet this requirement by setting out a detailed and thorough summary of

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the facts and conflicting evidence, stating his or her interpretation thereof, and making findings.

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Revels, 874 F.3d at 654. The ALJ generally must weigh an examining physician’s opinion more

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“Acceptable medical sources” include licensed physicians and licensed or certified psychologists. 20 C.F.R. §
404.1502(a); 20 C.F.R. § 416.902(a); Social Security Ruling (SSR) 06-03p, 2006 WL 2329939, at *1.

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heavily than a non-examining (reviewing) physician’s. Ghanim v. Colvin, 763 F.3d 1154, 1160

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(9th Cir. 2014).

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The ALJ need not discuss every item of evidence presented, Hiller v. Astrue 687 F.3d

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1208, 1212 (9th Cir. 2012). But the ALJ “may not reject ‘significant probative evidence’ without

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explanation.” Flores v. Shalala, 49 F.3d 562, 570-71 (9th Cir. 1995). The ALJ may reject a

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physician’s opinion if it is “brief, conclusory, and inadequately supported” by objective medical

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findings or “the record as a whole.” Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195

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(9th Cir. 2004).
a.

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Examining Psychologist Kimberly Wheeler, Ph.D.

Kimberly Wheeler, Ph.D., evaluated plaintiff in December 2014. Dr. Wheeler determined

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that plaintiff was moderately to markedly limited in a number of mental functional categories.

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AR 445, 521.

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The ALJ gave Dr. Wheeler’s opinion little weight because the ALJ found the opinion was

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inconsistent with Dr. Wheeler’s own clinical findings. AR 31. According to the ALJ’s decision,

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Dr. Wheeler found plaintiff was articulate, had a generally normal affect, and exhibited intact

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memory, fund of knowledge, and abstract reasoning. AR 26, 31, 446-47.

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Yet, as plaintiff points out, other findings Dr. Wheeler noted—heart-racing anxiety,

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feeling nervous inside, feeling distracted and overwhelmed, along with sadness, tears, anxious

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mood, fearful thought content, and mixed concentration (AR 444-47)—are consistent with Dr.

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Wheeler’s opinion. An ALJ may not reject a medical source opinion because it is based on the

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claimant’s self-reports when the medical source analyzes those self-reports using objective

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measures. In Buck v. Berryhill, the court held that the ALJ erred when he discounted the

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examining physicians opinion on the basis that the “opinion was based in part on [the claimant’s]

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self-report” because the examining doctor “also conducted a clinical interview and a mental

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status evaluation.” 869 F.3d 1040, 1049 (9th Cir. 2017). The court held that the interview and

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mental status evaluation were “objective measures and cannot be discounted as a ‘self-report.’”

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Id.

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In addition, the report of a psychiatrist or psychologist may appear to be subjective and

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based largely on the self-reports of a patient. Yet partial reliance on self-reported symptoms is to

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be expected as part of the practice of psychology or psychiatry. Buck, 869 F.3d at 1049.

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The United States Court of Appeals for the Ninth Circuit has also held that cycles of

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improvement and worsening symptoms are common for mental illness. Garrison v. Colvin, 759

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F.3d 995, 1016-1018 (9th Cir. 2014). Dr. Wheeler’s observations in examination notes of mixed

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behavior and symptoms—that the plaintiff in some respects appeared to be stable, and at other

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times appeared anxious and sad—should not be considered, as a matter of law, to be inconsistent

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with the evaluation findings. Although the ALJ did not specifically state that Dr. Wheeler’s

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opinion was being discounted due to reliance on plaintiff’s statements during the evaluation, the

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Court may reasonably infer that this was part of the ALJ’s reasoning. The ALJ’s determination

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discounting Dr. Wheeler’s opinion was not sufficiently supported.

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b.

Examining Physician Ron Nielsen, M.D.

Examining physician Ron Nielsen, M.D., opined in early December 2014 that plaintiff

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could stand and walk up to two hours at a time with occasional breaks, and up to six hours in an

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eight-hour workday. AR 439. He opined that plaintiff had no objective sitting limitations, though

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she was subjectively limited by pain. Id. Dr. Nielsen limited her to lifting and carrying 20 pounds

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occasionally and 10 pounds frequently. Id. He found no limitations regarding postural,

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manipulative, or workplace environmental activities. Id. at 440.

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The ALJ gave some weight to Dr. Nielsen’s opinion. AR 31. Plaintiff argues the ALJ

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failed to acknowledge examination findings support her testimony concerning her physical

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limitations. But where more than one rational interpretation can be drawn from the evidence, the

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Court must uphold the ALJ’s interpretation. See Orn, 495 F.3d at 630.

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The Court finds no error here. The ALJ correctly noted the objective findings are fairly

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minimal. AR 437-38. The limitations the ALJ adopted also generally match those Dr. Nielsen

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assessed. AR 24, 439-40. Thus, to the extent plaintiff alleges greater limitations than the ALJ

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found, Dr. Nielsen’s opinion contradicts that claim.

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c.

Examining Psychologist Terilee Wingate, Ph.D.

Examining psychologist Terilee Wingate, Ph.D., opined in December 2014 that plaintiff:

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could understand, remember, and learn some complex tasks; had difficulty sustaining

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concentration to tasks throughout a daily or weekly work schedule; had poor stress tolerance and

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was likely to withdraw when under pressure; may not always make good decisions in a work

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setting; and probably could get along with a few coworkers. AR 452.

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The ALJ gave “some weight to Dr. Wingate’s opinion to the extent it is consistent with”

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plaintiff’s RFC. AR 32. Plaintiff faults the ALJ for discounting Dr. Wingate’s opinion as being

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inconsistent with a predetermined RFC assessment. Dkt. 14, p. 7 (citing Laborin v. Berryhill, 867

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F.3d 1151, 1154-55 (9th Cir. 2017)).

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In Laborin, the ALJ discredited the plaintiff’s statements concerning his symptoms “to

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the extent they are inconsistent with” the plaintiff’s RFC. 867 F.3d at 1154. The Ninth Circuit

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reversed because “this flawed boilerplate language” added nothing to the ALJ’s RFC or

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credibility determinations, and the Court could not infer therefrom the ALJ’s reasons for

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discrediting the plaintiff’s statements. Id. at 1154-55. This Court applies the Ninth Circuit’s

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holding in Laborin, and finds that the ALJ’s reasoning in this case was error. Dr. Wingate’s

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evaluation of the plaintiff should not have been discounted as inconsistent with the RFC. On

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remand, the ALJ must evaluate the opinion of Dr. Wingate without referring to the RFC as a

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basis for the decision.

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d.

Other Medical Source Margene D. Fields, ARNP

Margene Fields, ARNP, examined plaintiff in late November 2014, opining that plaintiff

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was moderately limited in regard to walking, lifting, carrying, handling, stooping, and crouching,

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and restricted to sedentary work. AR 433-34, 575-77. The ALJ gave Ms. Fields’ opinion only

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limited weight, finding it to be inconsistent with “the minimal objective evidence in the record.”

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AR 31. Plaintiff argues pain and swelling in her fingers and hands and decreased handgrips

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observed by ARNP Fields in a treatment supports that opinion. See AR 576.

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The opinions of other medical sources “are important and should be evaluated on key

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issues such as impairment severity and functional effects, along with the other relevant evidence

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in the file.” Social Security Ruling (“SSR”) 06-03p, 2006 WL 2329939, at *3. An ALJ may

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reject medical opinion evidence if it is inadequately supported by clinical findings or the record

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as a whole. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004).

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ARNP Fields found plaintiff had good hip and lumbar spine range of motion. Id. Other

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objective medical findings in the record, including those related to plaintiff’s fingers and hands,

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are largely similarly benign. See AR 437-38, 537, 540, 544-45, 554, 558, 561, 564, 579, 581-82,

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585-86, 612, 624. Indeed, Dr. Nielsen found that plaintiff had normal fine motor coordination

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and intact grip strength. AR 438. The ALJ did not err by giving only limited weight to the

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opinion of ARNP Fields. Batson, 359 F.3d at 1195.

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e.

Other Medical Evidence

Plaintiff summarizes various objective medical findings, arguing those findings are
consistent with the above medical opinions as well as her own testimony. Dkt. 14, pp. 7-10.
Plaintiff fails to show how any of the objective findings she cites are linked to or cause

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actual functional limitations. Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993) (“The mere

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existence of an impairment is insufficient proof of a disability.”); see also Gentle v. Barnhart,

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430 F.3d 865, 868 (7th Cir. 2005) (“Conditions must not be confused with disabilities”); Higgs v.

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Bowen, 880 F.2d 860, 863 (6th Cir. 1988) (mere diagnosis says nothing about the severity of the

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diagnosed condition). Plaintiff shows no error.

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e.

Non-Examining Medical Source Opinion Evidence

Plaintiff challenges the ALJ’s decision giving great weight to the opinions of non-

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examining psychologists Leslie Postovoit, Ph.D., and James Baily, Ph.D., who generally found

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plaintiff had at most moderate mental functional limitations. AR 32, 97-98, 132-34; and plaintiff

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also challenges the opinion of non-examining physician Wayne Hurley, M.D., who assessed

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physical functional limitations largely consistent with those the ALJ adopted. AR 24, 32, 130-32.

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Because the Court has determined that the ALJ erred in evaluating the medical evidence

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concerning plaintiff’s psychological and psychiatric symptoms, on remand the ALJ should also

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re-weigh Dr. Postovoit’s, and Dr. Bailey’s, opinions.

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Dr. Hurley’s opinion was properly considered by the ALJ, because Dr. Hurley’s findings

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were largely consistent with the physical symptoms that plaintiff testified about, and were also

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consistent with the other professional analysis of limitations due to plaintiff’s fibromyalgia and

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arthritis. AR 59-65, 439-40. Therefore any error with respect to Dr. Hurley’s opinion was

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harmless. Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012).

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2.

The ALJ Properly Evaluated Plaintiff’s Testimony Regarding Physical Conditions

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and Impairments; the ALJ Did Not Properly Evaluate Plaintiff’s Credibility Regarding Mental

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Conditions.

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The ALJ “engages in a two-step analysis” when assessing a claimant’s credibility

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regarding subjective pain or symptom intensity. Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir.

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2014). The ALJ first must determine whether there is objective medical evidence of a mental or

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physical impairment that “could reasonably be expected to produce the pain or other symptoms

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alleged.” Id. If this test is met and there is no evidence of malingering, the ALJ can reject the

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claimant’s testimony about the severity of his or her symptoms only by providing “specific, clear

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and convincing reasons” for doing so. Id. The credibility determination is an assessment of the

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claimant’s testimony and other statements to “evaluate the intensity and persistence” of the

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claimant’s symptoms; it is not an examination of the claimant’s overall “character.” Trevizo, 871

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F.3d at 678 n.5.

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“General findings are insufficient; the ALJ must identify what testimony is not credible

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and what evidence undermines the claimant's complaints.” Ghanim, 763 F.3d at 1163 (quoting

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Lester, 81 F.3d at 834). The ALJ may use “ordinary techniques of credibility evaluation,” such

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as inconsistencies in the claimant’s statements or between the claimant’s statements and his or

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her conduct, any “unexplained or inadequately explained failure to seek treatment or to follow a

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prescribed course of treatment,” and whether the claimant has engaged in activities of daily

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living “inconsistent with the alleged symptoms.” Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir.

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2012) (citations omitted).

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The ALJ in this case discounted plaintiff’s allegations of disability as being inconsistent
with the objective medical evidence. AR 25-29. As discussed in the preceding section, the ALJ

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properly rejected the medical opinion evidence about plaintiff’s physical conditions (as opposed

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to mental health conditions), and this is a valid basis for discounting plaintiff’s credibility

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regarding her physical conditions. Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005).

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The ALJ also found plaintiff’s allegations to be less than fully credible because plaintiff

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had not been forthcoming regarding her substance use. AR 29. Inconsistent statements regarding

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substance use alone may not be sufficient to undermine plaintiff’s credibility. Molina, 674 F.3d

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at 1112.

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The ALJ found “a strong suggestion” that inconsistent statements regarding substance
use were part of plaintiff’s attempt to obtain narcotic pain medication. AR 29. For example, the

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ALJ noted plaintiff informed treatment providers during one emergency room visit that her

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primary care provider directed her there to obtain narcotic medications, which according to that

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care provider was not true. AR 29 (citing AR 537). The ALJ concluded these inconsistent

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statements suggested plaintiff may have been motivated more by her desire to obtain pain

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medications rather than by actual pain. Id.; see Edlund v. Massanari, 253 F.3d 1152, 1157 (9th

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Cir. 2001) (ALJ properly considered the likelihood that unbeknownst to the claimant’s

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physicians, the claimant was exaggerating his pain complaints in order to receive medication to

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feed his addiction).

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Plaintiff argues the ALJ’s finding is undermined by the fact that she was unable to obtain

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narcotic pain medications, and yet still described pain symptoms. But the inability to obtain pain

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medications does not necessarily indicate a lack of attempts to obtain it. The ALJ’s interpretation

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of the record is rational, and therefore will be upheld. Trevizo, 871 F.3d at 674-75; Treichler, 775

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F.3d at 1098.

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The ALJ also discounted plaintiff’s credibility on the basis of her activities of daily

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living. AR 30. “Engaging in daily activities that are incompatible with the severity of symptoms

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alleged can support an adverse credibility determination.” Ghanim v. Colvin, 763 F.3d 1154,

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1165 (9th Cir. 2014). An ALJ also may rely on daily activities to discount a claimant’s

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credibility if the claimant is able to spend a substantial part of his or her day engaged in activities

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that are transferable to a work setting. Id.

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The ALJ noted plaintiff was the primary care provider for her disabled mother. AR30

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(citing AR 628). But the record fails describe the nature and extent of plaintiff’s activities as her

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mother’s primary care provider. AR 628.

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The ALJ pointed as well to the fact that plaintiff lived independently, took care of her

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daughter’s dogs, ran errands, went to the store, and did household chores. AR 30. But again the

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record fails to show plaintiff performed these activities at frequency or to an extent indicative of

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an ability to perform them for a substantial part of the day or in a manner transferrable to a work

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setting. AR 66-67, 69, 320-23, 340-43, 359, 363-66, 436, 450.

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Lastly, the ALJ found plaintiff not fully credible because she received unemployment

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benefits for five and a half months after she lost her job in December 2013. AR 30. Receipt of

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unemployment benefits “can undermine a claimant’s alleged inability to work.” Carmickle v.

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Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161-62 (9th Cir. 2008). But where the record does

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not show plaintiff held herself out as being available for full-time work, this is not a valid basis

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for discounting her testimony. Id.

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Plaintiff testified that she applied for various jobs during that time, had “two really good

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interviews,” and would have been able to perform the job if offered one. AR 51-53. There is no

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indication, though, whether any of the jobs plaintiff applied for were full-time. Because it is not

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clear that plaintiff was holding herself out as being available for full-time work, this also is not a

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valid basis for discounting her credibility.
The United States Court of Appeals for the Ninth Circuit has held that an ALJ commits

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legal error by failing to recognize that cycles of improvement and worsening symptoms are

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common for mental illness. Garrison v. Colvin, 759 F.3d 995, 1016-18 (9th Cir. 2014). In this

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case, the plaintiff’s testimony about behaviors, drug problems, depression, alcohol abuse, and

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PTSD symptom—showing the plaintiff in some respects appeared to be stable, and at other times

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appeared anxious and sad—does not constitute a legally valid reason for discounting her

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credibility about how she experienced symptoms and limitations due to mental conditions. On

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remand, the ALJ must re-evaluate the plaintiff’s testimony about symptoms of her mental

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illness(es) and limitations that are related to those symptoms. In addition, any potential

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relationship between plaintiff’s mental illness(es) and alcohol abuse, periods of drug use and

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abuse and any effects of drug interactions, would be an important ambiguity to be explored with

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respect to the plaintiff’s symptom testimony.

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3.

The ALJ Properly Evaluated the Lay Witness Evidence Regarding Plaintiff’s

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Physical Condition; The ALJ Erred by Rejecting Lay Witness Evidence Regarding Plaintiff’s

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Mental Condition(s) and Any Related Limitations.

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The ALJ must take into account lay witness testimony regarding a claimant’s symptoms,

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unless the ALJ expressly rejects the testimony and gives reasons germane to that lay witness for

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doing so. Diedrich v. Berryhill, 874 F.3d 634, 640 (9th Cir. 2017).

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Plaintiff’s daughter, Ms. Johns, completed an adult function report in which she set forth

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her observations of plaintiff’s symptoms and limitations. AR 339-45. She reported that plaintiff

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has memory and concentration difficulties, problems using her hands, needs to take breaks when

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doing household chores because her arms bother her and she experiences frustration easily, is

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“down for a few days” at times due to depression, does not handle stress well, and is limited in

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terms of bending and walking. Id.

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The ALJ found Ms. Johns’ statements indicate that plaintiff is not as limited as alleged,

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as they show plaintiff is able to watch Ms. Johns’ dogs, take short walks, and run errands for her

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mother. AR 31. But as explained in the previous section, the record fails to show these activities

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are performed for the substantial part of the day, or to the extent indicative of transferability to a

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work setting. Diedrich v. Berryhill, 874 F.3d 634, 643 (9th Cir. 2017) (finding household chores,

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caring for a cat in one’s own home, and occasional shopping outside the home are not similar to

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typical work responsibilities and are thus are not the type activities that can be readily transferred

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to a work environment).
Nevertheless, the ALJ’s error was harmless. Where the ALJ discusses and rejects the

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claimant’s testimony “based on well-supported, clear and convincing reasons,” and the lay

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witness testimony does not describe limitations beyond those the claimant describes, the Court

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can be confident that the ALJ’s lack of reasons specific to the lay witness for rejecting that

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witness’s testimony is “inconsequential to the ultimate nondisability determination.” Molina v.

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Astrue, 674 F.3d 1104, 1122 (9th Cir. 2012) (quoting Carmickle v. Comm’r, Soc. Sec. Admin.,

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533 F.3d 1155, 1162 (9th Cir. 2008)).

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Here, the ALJ offered well-supported, clear and convincing reasons for discounting

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plaintiff’s allegations concerning the severity of her physical impairments. Like Ms. Johns,

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plaintiff testified that she has problems with her hands and arms, difficulties bending, walking,

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and performing household chores, panic attacks that produce significant mental and physical

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symptoms, and suicidal thoughts. AR 62-69. The testimony of Ms. Johns was cumulative as to

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plaintiff’s physical conditions.

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However, with respect to panic attacks, and suicidal thoughts, the ALJ erred. On remand,

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lay testimony should be reconsidered, for the same reason that plaintiff’s testimony about mental

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conditions and symptoms should be re-evaluated.

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4.

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The Commissioner employs a five-step sequential evaluation process to determine

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whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920. At step five of that process, the

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ALJ assesses the claimant’s residual functional capacity (RFC) to determine whether he or she

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can make an adjustment to other jobs existing in significant numbers in the national economy.

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Kennedy v. Colvin, 738 F.3d 1172, 1175 (9th Cir. 2013); Hill v. Astrue, 698 F.3d 1153, 1161 (9th

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The ALJ Did Not Properly Assess Plaintiff’s RFC.

Cir. 2012); 20 C.F.R. §§ 404.1520(e), 416.920(e).
Plaintiff argues the ALJ’s RFC assessment is erroneous, because it does not include all of

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the functional limitations Dr. Wheeler, Dr. Wingate, and Ms. Fields assessed. The ALJ erred

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with respect to the functional limitations concerning mental health limitations, and that portion of

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the RFC must be re-evaluated on remand. But the ALJ did not err in rejecting Ms. Fields’

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assessment concerning plaintiff’s physical limitations.

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The Court must consider the administrative record as a whole. Garrison v. Colvin, 759

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F.3d 995, 1009 (9th Cir. 2014). The ALJ erred in discounting the opinions of Dr. Wheeler and

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Dr. Wingate; therefore on remand, the ALJ must re-evaluate the evidence concerning the

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plaintiff’s mental condition(s). The ALJ is directed to review the evidence from Dr. Wheeler and

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Dr. Wingate without using the legally erroneous reasoning, while also considering any new

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evidence of the plaintiff’s mental health condition(s) and limitation(s); and then re-consider the

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RFC assessment as well as step five concerning whether plaintiff could perform other work.

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It should be noted that the record shows plaintiff was hospitalized for seven days

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concerning a psychiatric episode in November 2016; the psychiatrist who supervised her care

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noted a history of anxiety (and use of various substances, including alcohol, to cope with the

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anxiety). AR 643. The ALJ acknowledged this, AR 28-29, but discounted the episode as being

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purely alcohol-abuse-related. Id. A few months prior to this psychiatric in-patient treatment, the

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plaintiff was evaluated for anxiety and depression as well as knee pain, and the treating physician

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noted a long history of what might be untreated bipolar disorder. AR 595. In addition, in early

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2016 she was evaluated for anxiety and chronic pain, and the Advanced Registered Nurse

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Practitioner Hilary Walker noted that the plaintiff indicated during intake that multiple drugs had

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been used by the plaintiff since a Labor and Industries matter in 2009, some prescribed and

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others not prescribed. AR 591-92. The record as a whole indicates a complex situation over

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many years, with mental health and substance use behaviors, and possible drug interactions.

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There is ambiguity in the record concerning the nature and severity of the plaintiff’s mental

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health condition(s), history of drug use (prescribed and not prescribed) and related

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impairment(s), and this ambiguity should be resolved by the ALJ on remand.

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CONCLUSION
The Commissioner’s decision to deny benefits, accordingly, is REVERSED and
REMANDED for further administrative proceedings.
Dated this 4th day of March, 2019.

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A

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Theresa L. Fricke
United States Magistrate Judge

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ORDER REVERSING AND REMANDING THE
COMMISSIONER’S DECISION TO DENY BENEFITS - 15