Wright v. Commissioner of Social Security

Filing 12

ORDER REVERSING THE COMMISSIONER'S FINAL DECISION by Hon. Brian A Tsuchida. The Commissioner's final decision is REVERSED and this case is REMANDED for further administrative proceedings. (TF)

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1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 8 STEVEN A. W., 10 11 CASE NO. C23-5561-BAT Plaintiff, 9 ORDER REVERSING THE COMMISSIONER’S FINAL DECISION v. COMMISSIONER OF SOCIAL SECURITY, Defendant. 12 13 Plaintiff seeks review of the denial of his application for Disability Insurance Benefits. 14 He contends the ALJ harmfully misevaluated two medical opinions. Dkt. 7. For the reasons 15 below, the Court REVERSES the Commissioner’s final decision and REMANDS the matter for 16 further administrative proceedings under sentence four of 42 U.S.C. § 405(g). 17 DISCUSSION 18 In evaluating the medical evidence, the ALJ must articulate the persuasiveness of each 19 medical opinion, specifically with respect to whether the opinions are supported and consistent 20 with the record. 20 C.F.R. § 404.1520c(a)-(c). An ALJ’s consistency and supportability findings 21 must be supported by substantial evidence. See Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 22 2022). 23 ORDER REVERSING THE COMMISSIONER’S FINAL DECISION - 1 1 Plaintiff first contends the ALJ misevaluated the opinions of neurologist Robert Moore, 2 M.D. Dr. Moore examined Plaintiff and found Plaintiff had minimally unsteady gait, slight 3 difficulty walking on his heels and toes, and moderate impairment in tandem gait, but normal 4 strength and intact coordination. Tr. 24. The ALJ found Dr. Moore’s opinion persuasive, and 5 partially supported by physical exam. Id. However, the ALJ discounted the doctor’s opinion that 6 Plaintiff is limited to two hours of standing or walking on the grounds the opinion was 7 inconsistent with Plaintiff’s testimony that he walked one mile roundtrip to Walmart several 8 times a week. Tr. 24. 9 There is no evidence Plaintiff’s one mile roundtrip walk to Walmart exceeded two hours 10 and it would be unreasonable to simply assume such a walk would. The Court thus concludes 11 substantial evidence does not support the ALJ’s finding that Plaintiff’s testimony contradicts Dr. 12 Moore’s opinion. 13 The ALJ also noted Dr. Moore assessed “frequent manipulative activities on the right but 14 none on the left.” Id. The ALJ rejected this limitation because “the claimant demonstrated 15 normal upper extremity strength” and because Dr. Moore’s “opinion is somewhat consistent with 16 subsequent normal neurological findings.” This rationale is not supported by substantial 17 evidence. First, the ALJ’s description of the limitations Dr. Moore assessed does not capture all 18 limitations assessed. Dr. Moore stated: 19 20 21 22 23 With the right upper extremity, the claimant can frequently but not continuously push and pull. The claimant would have slight difficulty operating hand controls and using tools. The claimant can perform simple gripping and distal fine coordinated movements with the hands and the fingers. The claimant has unrestricted use of the left arm. Tr. 956. Before rendering this opinion, Dr. Moore noted that while Plaintiff has normal strength in his extremities, he “reports diminished sensation to soft touch, distantly, in a scattered pattern ORDER REVERSING THE COMMISSIONER’S FINAL DECISION - 2 1 to the right elbow, and in the right side.” Tr. 955. Hence, even assuming the ALJ reasonably 2 questioned the “frequently” versus “continuous” limitation that Dr. Moore assessed, the ALJ 3 failed to address or give reasons to discount Dr. Moore’s opinion Plaintiff would also have slight 4 difficulty operating hand controls and using tools. The latter limitations flow from Dr. Moore’s 5 notation that Plaintiff reported sensory limitations on the right side, which the ALJ did not 6 discuss. 7 The Court notes the ALJ’s statement Dr. Moore’s “opinion is somewhat consistent with 8 subsequent normal neurological findings” is both confusing and unclear. The ALJ did not 9 indicate the subsequent findings contradict or degrade the limitations Dr. Moore assessed and 10 thus the Court concludes the ALJ’s statement is not a specific and legitimate reason to discount 11 all of Dr. Moore’s opinions. The Court accordingly concludes the ALJ erred in discounting all of 12 Dr. Moore’s opinions. 13 Plaintiff also contends the ALJ misevaluated the opinions of treating provider Michael 14 Garrett, ARNP. The ALJ rejected ARNP Garrett’s opinion Plaintiff is severely limited in his 15 mental functioning as “unsupported by the record.” Tr. 24. 16 The regulations require the ALJ to make supportability and consistency findings in 17 assessing a medical opinion that are supported by substantial evidence. Supportability means the 18 extent to which a medical source supports the medical opinion by explaining the “relevant ... 19 objective medical evidence.” 20 C.F.R. §§ 404.1520c(c)(1), 416.920c(c)(1). In contrast, 20 consistency means the extent to which a medical opinion is “consistent ... with the evidence from 21 other medical sources and nonmedical sources in the claim.” 20 C.F.R. §§ 404.1520c(c)(2), 22 416.920c(c)(2). 23 ORDER REVERSING THE COMMISSIONER’S FINAL DECISION - 3 1 Hence, while the ALJ stated he discounted ARNP Garrett’s opinion as “unsupported” by 2 the record, what the ALJ meant was the ARNP’s opinion was not “consistent” with other 3 evidence of record. Indeed, the ALJ rejected the ARNP’s opinion Plaintiff has mood lability and 4 difficulty in the ability to maintain attendance and complete a normal workday without 5 psychological interruptions by stating “the record showed” “mostly normal/appropriate mood 6 post CVA and resection of meningioma,” and Plaintiff “demonstrates intact cognition.” Tr. 24. 7 The Commissioner argues ARNP Garrett’s opinions are “unsupported.” Dkt. 10 at 6. As 8 the ALJ made no supportability findings and instead rejected the ARNP’s opinion as not 9 “consistent” with the record the Court declines to adopt the Commissioner’s position. Given the 10 determination the ALJ made, the proper focus of the ALJ’s assessment of ARNP Garretts’ 11 opinions is thus whether the ALJ correctly found the opinions are not consistent with the record. 12 Plaintiff contends the ALJ’s findings are erroneous because the ARNP opined Plaintiff 13 could meet attendance requirements, contrary to the ALJ’s finding the ARNP opined otherwise. 14 The record shows the ARNP opined Plaintiff’s ability to maintain regular attendance and be 15 punctual within customary usually strict tolerance was “limited but satisfactory.” Any error the 16 ALJ committed in incorrectly finding Plaintiff was more limited as to regular attendance is thus 17 harmless because as Plaintiff concedes, he is not limited in this regard. 18 Plaintiff also argues the ALJ erred because the ARNP’s opinion is not based upon mood 19 lability and is instead based upon his opinion that Plaintiff is unlikely to recover from cognitive 20 impairment. ARNP Garrett stated “Patient had meningioma with right frontal resection – 21 location makes altered judgment and mood lability very likely,” omitted “emotional lability” as 22 one of Plaintiff’s symptoms, Tr. 1315, but indicated “mood lability,” id., is a side effect of the 23 medications Plaintiff takes, Tr. 1316, and that Plaintiff’s impairments are consistent with ORDER REVERSING THE COMMISSIONER’S FINAL DECISION - 4 1 “Imaging (CT, MRI), PHQ-9; GAD-& *Frontal brain injuries, often greatly worsen judgment, 2 mood lability, decision making and other executive functions.” Tr. 1317. 3 The ARNP’s statements thus indicate “mood lability” plays a role in Plaintiff’s functional 4 limitations. To be sure, the ARNP also noted “patient will probably not have further cognitive 5 recovery” and that his symptoms include “difficulty remembering, confusion, and difficulty 6 solving problems” but this statement does not exclude mood lability as a factor affecting 7 functioning. Tr. 1315. The record accordingly shows the ARNP indicated both mood lability and 8 cognitive decline affected Plaintiff’s ability to perform gainful work activity. 9 The Commissioner contends the ALJ properly rejected ARNP Garrett’s opinions because 10 “as the ALJ pointed out clinicians repeatedly found normal or appropriate mood and cognition. 11 Dkt. 10 at 6. However, in discussing the ARNP’s opinion, the ALJ rejected it without citing to 12 any specific portion of the record. The ALJ thus failed to provide a specific and legitimate reason 13 to discount the opinion. See Sonja S. Commissioner of Social Security, No. C21-5667-RSM, 14 2022 WL 420824 at * 3 (W.D. Wash., Feb 11, 2022) (The new regulations require the ALJ 15 provide specific and legitimate reasons to reject doctor’s opinion). 16 Although the ALJ failed to site to specific portions of the record, the Commissioner cites 17 to medical records at Tr. 945, 1005 and 1011 to support the ALJ’s finding. The ALJ did not 18 provide these citations and thus the Commissioner’s argument is a post hoc argument upon 19 which the Court cannot rely. In any event, the Commissioner’s record citations are not 20 substantial evidence that supports the ALJ’s determination. The medical note at Tr. 945 was 21 created on June 12, 2019. It is not a mental health assessment and simply indicates “[t]he patient 22 is awake and alert.” This note does not set forth Plaintiff’s cognitive functioning. 23 ORDER REVERSING THE COMMISSIONER’S FINAL DECISION - 5 1 The note at Tr. 1005 was based upon a March 3, 2021, visit for hypertension and 2 indicates “Psychiatric: Pleasant; Good eye contact and well groomed; normal range of expression 3 when speaking.” This note also does not comment on whether there was mood or any other 4 mental health issues and does not set forth Plaintiff’s cognitive functioning. The note at Tr. 1011 1 was based upon a June 15, 2021, and states “Mental status: awake 5 6 and alert. Fully oriented to person, time and places with normal attention span and concentration. 7 Recent and remote memory are intact with a good fund of knowledge. Speech is fluent and 8 appropriate.” This note tends to undercut ARNP Garrett’s opinion Plaintiff is “unable to meet 9 competitive standards” regarding “remember work-like procedures” or understand and remember 10 short simple instructions. Tr. 1316. But it is a single record, and thus alone, is not substantial 11 evidence to support the ALJ’s finding that “the record” is not consistent with ARNP Garrett’s 12 opinion. The Court accordingly concludes the records proffered by the Commissioner do not 13 constitute substantial evidence that undermine the ARNP’s opinions. 14 The ALJ also discounted ARNP Garrett’s opinion because Plaintiff only recently started 15 “behavioral treatment.” The ALJ failed to explain how or why this is relevant to ARNP’s opinion 16 and the Court thus rejects the rationale as an insufficient conclusory statement. Cf. Embrey v. 17 Bowen, 849 F.2d 418 (9th Cir.1988) (Conclusory reasons do not justify an ALJ’s rejection of a 18 medical opinion). 19 And lastly the ALJ rejected ARNP Garrett’s opinion as inconsistent with Plaintiff’s 20 “independence in daily activities that includes caring for his disabled father and occasionally 21 watching his grandchildren.” Tr. 24. The ALJ did not articulate why Plaintiff’s care and 22 occasional watching of grandchildren were inconsistent with the ARNP’s opinions. There are no 23 1 The Commissioner incorrectly indicated the record at Tr. 1010 supported the ALJ. ORDER REVERSING THE COMMISSIONER’S FINAL DECISION - 6 1 facts discussed, for instance, that indicates Plaintiff engaged in activities that exceeded the limits 2 assessed by the ARNP. Tr. 370. In his function report, Plaintiff describes his daily activities to 3 include bathing, takes pills, sometimes walking to Walmart ½ mile away, and mostly watching 4 TV. Tr. 370. These are not activities that are inconsistent with the ARNP’s opinions. The Court 5 accordingly concludes substantial evidence does not support the ALJ’s finding that Plaintiff’s 6 activities contradict ARNP Garrett’s opinions. 7 CONCLUSION 8 For the foregoing reasons, the Court finds the ALJ harmfully erred in rejecting the 9 opinions of Dr. Moore and ARNP Garrett. The error is harmful because the RFC determination 10 and the hypothetical question to the vocation expert do not account for all of the limitations the 11 medical sources assessed. The Court accordingly REVERSES the Commissioner’s final 12 decision and REMANDS the case for further administrative proceedings under sentence four of 13 42 U.S.C. § 405(g). On remand, the ALJ shall reevaluate the opinions of Dr. Moore and ARNP 14 Garrett, develop the record and redetermine residual functional capacity as needed, and proceed 15 to the remaining steps of the disability evaluation process as appropriate. 16 17 18 19 DATED this 14th day of November, 2023. A BRIAN A. TSUCHIDA United States Magistrate Judge 20 21 22 23 ORDER REVERSING THE COMMISSIONER’S FINAL DECISION - 7

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