Sanchez v. Berryhill

Filing 23

ORDER ON PLAINTIFF'S COMPLAINT by Judge J Richard Creatura. (KEB)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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GERVONDA S.,
Plaintiff,

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CASE NO. 3:18-cv-05130 JRC
ORDER ON PLAINTIFF’S
COMPLAINT

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

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

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Magistrate Judge Rule MJR 13. See also Consent Filed by Plaintiff To Proceed Before a

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Magistrate Judge, Dkt 2. This matter has been fully briefed. See Dkt. 20, 21, 22.

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ORDER ON PLAINTIFF’S COMPLAINT - 1

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In support of her disability claim, plaintiff submitted the opinion of Dr. Wingate, an

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examining psychologist who diagnosed plaintiff with post-traumatic stress disorder (“PTSD”),

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major depressive disorder, and antisocial personality traits. Dr. Wingate assessed a number of

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moderate to marked limitations to plaintiff’s work abilities.

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After considering and reviewing the record, this Court concludes that the ALJ erred when

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he rejected Dr. Wingate’s opinion because the ALJ mischaracterized Dr. Wingate’s mental status

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examination results as being normal and because the ALJ improperly found that plaintiff’s

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descriptions of stressful life events showed that her symptoms were all attributable to situational

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stressors, rather than mental health conditions. Because had the ALJ not erroneously rejected

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Dr. Wingate’s opinion, the outcome could have differed, the error was not harmless. However

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further issues remain and it is not clear, even crediting Dr. Wingate’s opinion as true, that

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plaintiff is disabled, so that a remand for further proceedings is appropriate.

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FACTS
In November 2014, plaintiff applied for disability insurance benefits under 42 U.S.C. §

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423 (Title II) and supplemental security income benefits under 42 U.S.C. § 1382(a) (Title XVI)

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of the Social Security Act and alleged disability beginning in December 2010, when plaintiff was

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33. See AR. 17, 80. Plaintiff’s highest level of education was the ninth grade. AR. 51. She was

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able to work some between 2012 and 2014, as a caregiver and library aide. AR. 278; see AR. 19.

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Plaintiff alleged that depression, PTSD, degenerative disc disease, and anxiety limited her ability

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to work. See AR. 277. The Administration denied her applications initially and following

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reconsideration. AR. 17.

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ORDER ON PLAINTIFF’S COMPLAINT - 2

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In May 2016, Administrative Law Judge James Sherry (“the ALJ”) found that plaintiff’s

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date last insured was in June 2017 and that she was not disabled during the relevant period. See

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AR. 17, 30. At step 2, the ALJ found that plaintiff had at least the severe impairments of facet

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joint syndrome/lumbago/degenerative disc disease of the lumbar spine, chronic pain syndrome,

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obesity, major depressive disorder, PTSD/generalized anxiety disorder, anti-social personality

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traits, and a history of substance abuse. AR. 20.

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The Appeals Council denied plaintiff’s request for review. AR. 1. Plaintiff then filed a
complaint for judicial review of the ALJ’s decision in this Court. See Dkt. 4.

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DISCUSSION

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Plaintiff argues that the ALJ erred when he evaluated the medical evidence. Dkt. 20, at 2.

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I. Legal Principles

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Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of

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social security benefits if the ALJ’s findings are based on legal error or not supported by

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substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th

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Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)).

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II. Dr. Wingate’s Opinion

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In October 2014, Terilee Wingate, Ph.D., examined plaintiff for the Department of Social

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and Health Services. AR. 627. Dr. Wingate reviewed some of plaintiff’s medical records from

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November 2013 to May 2014, interviewed plaintiff, and conducted a mental status examination.

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AR. 627, 630.

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ORDER ON PLAINTIFF’S COMPLAINT - 3

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Dr. Wingate diagnosed plaintiff with chronic PTSD, recurrent and severe major

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depressive disorder, and antisocial personality traits. AR. 629. She assessed marked (“very

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significant”) limitations to plaintiff’s abilities to perform activities within a schedule, maintain

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regular attendance, be punctual within customary tolerances, communicate and perform

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effectively within a work setting, complete a normal work day and week without interruptions

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from psychologically based symptoms, and maintain appropriate behavior in a work setting. AR.

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629–30. Dr. Wingate also assessed moderate (“significant”) limitations to plaintiff’s abilities to

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understand, remember, and persist in tasks by following detailed instructions; learn new tasks;

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adapt to changes in a routine work setting; perform routine tasks without special supervision;

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make simple work-related decisions; ask simple questions or request assistance; and set realistic

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goals and plan independently. AR. 629–30.

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State agency doctors who reviewed plaintiff’s applications contradicted Dr. Wingate’s

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opinion about limitations to plaintiff’s abilities to perform activities within a schedule, maintain

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regular attendance, and be punctual within customary tolerances; to ask simple questions or

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request assistance; to communicate and perform effectively; to complete work without

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interruption; and to maintain appropriate behavior. See AR. 99–100, 127–28. The reviewing

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doctors opined that plaintiff had no significant limitations in these areas except for her ability to

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complete a normal work day or week without interruption, which reviewing doctors found to be

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only moderately limited. See AR. 99–100, 127–28. Thus, this Court reviews the ALJ’s decision

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to give little weight to Dr. Wingate’s assessment of these limitations to determine whether the

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ALJ provided specific and legitimate reasons that were supported by substantial evidence in the

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record. See Lester v. Chater, 81 F.3d 830–31 (9th Cir. 1995).

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ORDER ON PLAINTIFF’S COMPLAINT - 4

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As for the remaining limitations that Dr. Wingate assessed—moderate limitations to

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plaintiff’s abilities to understand, remember, and persist in tasks by following detailed

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instructions; to learn new tasks; to perform routine tasks without special supervision; to adapt to

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changes in a routine work setting; to make simple work-related decision; and to set realistic goals

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and plan independently—none of the other medical opinions that the ALJ considered

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controverted these limitations that Dr. Wingate assessed. See AR. 99–100, 127–28, 420–22.

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This Court therefore reviews the ALJ’s decision to give little weight to Dr. Wingate’s remaining

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limitations to determine whether the ALJ provided clear and convincing reasons that were

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supported by substantial evidence in the record. See Lester, 81 F.3d at 830.

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The ALJ gave “[l]ittle weight” to Dr. Wingate’s opinion because it was “not entirely

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consistent with her examination and [plaintiff’s] treatment records.” AR. 28. The ALJ pointed

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to Dr. Wingate’s mental status examination results that plaintiff had “logical speech, she was

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cooperative, her memory was intact, and her fund of knowledge was intact” as inconsistent with

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Dr. Wingate’s opinion. AR. 28.

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An ALJ may reject a doctor’s opinion if it is contradicted by the doctor’s recorded

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observations. See Bayliss, 427 F.3d at 1216. An ALJ must not simply offer his own conclusions

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but “must set forth his own interpretations and explain why they, rather than the doctors’, are

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correct.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998).

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Here, the ALJ ran afoul of these principles. The ALJ cited to Dr. Wingate’s observations

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that plaintiff’s speech was logical, her attitude was cooperative, and her memory and fund of

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knowledge were intact. See AR. 28. But in doing so, the ALJ ignored without explanation

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multiple abnormalities that Dr. Wingate observed when she conducted the mental status

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examination—plaintiff’s mood was dysphoric, her affective range was blunted, she had slowed

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ORDER ON PLAINTIFF’S COMPLAINT - 5

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mental processing and errors in concentration testing, and she failed to demonstrate appropriate

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insight and judgment. See AR. 630–31. This was error: an ALJ should not “succumb to the

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temptation to play doctor” because “[c]ommon sense can mislead; lay intuitions about medical

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phenomena are often wrong.” Schmidt v. Sullivan, 914 F.2d 117, 118 (7th Cir. 1990); see also

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Gober v. Mathews, 574 F.2d 772, 777 (3d Cir. 1978) (An ALJ “is not free to set his own

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expertise against that of a physician who testified before him.”). Moreover, the ALJ’s treatment

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of the mental status examination results suggests improper cherry-picking of the record to

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support his ultimate decision. See Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014). By

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glossing over the abnormalities that Dr. Wingate observed when she conducted her mental status

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examination, the ALJ ignored the significance of mental status examinations, which reflect the

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objective findings of mental health professionals, who are trained to observe patients for signs of

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their mental health not rendered obvious by the patient’s subjective reports. See Paula T.

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Trzepacz & Robert W. Baker, The Psychiatric Mental Status Examination 4 (Oxford University

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Press 1993).

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The ALJ failed to provide either a legitimate or convincing reason to reject Dr. Wingate’s

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opinion when the ALJ found that her mental status examination results did not support her

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opinion. Defendant argues that other mental status examination results in the record support the

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ALJ’s analysis, but this Court may not supply alternative grounds for an ALJ’s decision. See

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Bray v. Cmm’r, 554 F.3d 1219, 1225 (9th Cir. 2009); Dkt. 21, at 5–6.

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The other rationale upon which the ALJ relied when he rejected Dr. Wingate’s opinion

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was inconsistency with plaintiff’s treatment records, which, according to the ALJ, “contain[ed]

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evidence of few abnormalities.” AR. 28. The ALJ explained that plaintiff “has reported

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depression from situation[al] stressors, but has not presented with symptoms that support marked

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ORDER ON PLAINTIFF’S COMPLAINT - 6

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limitations.” AR. 28. The ALJ did not cite to any portion of the record in support of this

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analysis but appears to have relied on his earlier summary of the medical evidence, in which he

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found that plaintiff “generally reported situational stressors involving her children, family,

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housing, transportation, and finances.” AR. 26.

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To be sufficiently specific, an ALJ’s decision should link his reasoning to evidence in the

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record. See Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988) (holding that the ALJ erred by

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failing to give specific reasons for rejecting a treating doctor’s opinion, including failing to

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explain why the ALJ disagreed with the opinion or give reasons for rejecting specific

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limitations). An ALJ must go beyond merely stating that objective evidence is contrary to a

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doctor’s opinion. See id. The ALJ’s rationale for rejecting an opinion must be clear enough to

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facilitate meaningful review and so that this Court is not forced to invent findings for the ALJ.

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See Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015); Bray, 554 F.3d at 1225.

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Of the ALJ’s conclusory determination that plaintiff’s treatment records were

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inconsistent with Dr. Wingate’s opinion, only the ALJ’s finding that plaintiff’s depression

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resulted from situational stressors is specific enough for meaningful review. See AR. 28. The

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ALJ relied upon treatment notes from plaintiff’s 2015 to 2016 therapy sessions, in which she

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identified various stressful aspects of her life, such as difficulties parenting her son, seeing her

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ex-husband, dealing with financial issues, reacting to current events, and dealing with memories

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of prior abuse. See AR. 760–71.

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But the treatment notes that the ALJ relied upon do not include any evidence of whether

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isolated and sporadic events caused plaintiff’s mental symptoms—which could support that

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plaintiff was not disabled—or whether plaintiff’s mental conditions caused her to be unable to

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cope with stressful events—which would support Dr. Wingate’s conclusion about plaintiff’s

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ORDER ON PLAINTIFF’S COMPLAINT - 7

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depression-based limitations. Because mental health conditions may presumably cause life

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stressors or difficulty dealing with life stressors, this Court finds that standing alone, the mere

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fact that plaintiff complained of life stressors is not substantial evidence to discredit Dr.

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Wingate’s opinion that plaintiff suffered disabling mental conditions. Further, the ALJ

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improperly failed to explain why his interpretation of these events—rather than Dr. Wingate’s

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assessment that plaintiff’s mental conditions limited her abilities to deal with others and engage

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in activities—was correct. See Reddick, 157 F.3d at 725; AR. 628. Thus, the ALJ’s rationale

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about plaintiff’s “situation[al] stressors” was neither a specific and legitimate nor a clear and

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convincing reason supported by substantial evidence to reject Dr. Wingate’s opinion.

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III. Not Harmless Error and Remand for Further Proceedings

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“ALJ errors in social security cases are harmless if they are ‘inconsequential to the

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ultimate nondisability determination[,]’ and . . . ‘a reviewing court cannot consider [an] error

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harmless unless it can confidently conclude that no reasonable ALJ, when fully crediting the

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testimony, could have reached a different disability determination.’” Marsh v. Colvin, 792 F.3d

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1170, 1173 (9th Cir. 2015) (quoting Stout v. Cmm’r, 454 F.3d 1050, 1055–56 (9th Cir. 2006)).

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The ALJ failed to give any valid reason for rejecting Dr. Wingate’s opinion. Moreover,

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had the ALJ fully credited Dr. Wingate’s testimony, the residual functional capacity (“RFC”)

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could have included greater limitations. For instance, Dr. Wingate opined that plaintiff suffered

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from marked limitations to her abilities to perform activities within a schedule, maintain regular

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attendance, and be punctual within customary tolerances without special supervision. See AR.

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629. The ALJ did not incorporate this limitation in his RFC (see AR. 22), and the vocational

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expert testified that someone who had chronic absences more often than once a month would be

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unable to maintain employment. See AR. 75. Further, although the ALJ incorporated into the

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ORDER ON PLAINTIFF’S COMPLAINT - 8

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RFC that plaintiff could maintain attention and concentration for “two-hour intervals” as long as

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she was confined to simple, routine, and repetitive tasks (AR. 22), Dr. Wingate opined that

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plaintiff had more significant interruptions from psychological symptoms than the reviewing

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doctors—whom the ALJ had credited—opined. See AR. 630. The vocational expert testified

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that although being off-task less than ten percent of the time would not bar employment, being

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off-task more than fifteen percent of the time would likely bar employment. AR. 73–75.

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However, Dr. Wingate did not translate the limitations that she assessed into specific

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amounts of time that plaintiff would be off-task or absent from work. Thus, all factual issues are

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not resolved and it is not clear that, even crediting Dr. Wingate’s opinion as true, the ALJ would

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be required to find plaintiff disabled. Accordingly, a remand for further proceedings, rather than

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an award of benefits, is appropriate under the credit-as-true rule. See Dominguez v. Colvin, 808

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F.3d 403, 407 (9th Cir. 2015).

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IV. Remaining Issues

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Plaintiff also argues that the ALJ erred in evaluating her credibility, another doctor’s

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medical opinion, and assessing the RFC and that this Court must consider additional evidence.

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Dkt. 20, at 2. Because this Court remands for further proceedings, the ALJ must reassess

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plaintiff’s credibility, the medical opinion evidence, and the RFC, and this Court does not

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discuss plaintiff’s remaining issues. See Program Operations Manual System (POMS) GN

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03106.036 Court Remand Orders, https://secure.ssa.gov/poms.nsf/lnx/0203106036 (last visited

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January 8, 2019) (a court order vacating a prior decision and remanding the case voids the prior

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decision and thus returns the case to the status of a pending claim).

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ORDER ON PLAINTIFF’S COMPLAINT - 9

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

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matter be REVERSED AND REMANDED for further proceedings pursuant to sentence

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four of 42 U.S.C. § 405(g).

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JUDGMENT should be for the plaintiff, and the case should be closed.

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Dated this 9th day of January, 2019.

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A

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J. Richard Creatura
United States Magistrate Judge

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ORDER ON PLAINTIFF’S COMPLAINT - 10