Opinion
1:21-cv-00038-YY
02-06-2023
TARA W.,[1] Plaintiff, v. COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant.
OPINION AND ORDER
YOULEE YIM YOU UNITED STATES MAGISTRATE JUDGE
Plaintiff Tara W. seeks judicial review of the final decision by the Commissioner of Social Security (“Commissioner”) denying her application for Supplemental Security Income (“SSI”) disability benefits under Title XVI of the Act, 42 U.S.C. §§ 1381-1383f. This court has jurisdiction to review the Commissioner's final decision pursuant to 42 U.S.C. §§ 405(g). For the reasons set forth below, that decision is REVERSED and REMANDED for further proceedings.
PROCEDURAL HISTORY
Plaintiff protectively filed for SSI on April 8, 2019. She initially alleged disability beginning on February 6, 1999, but amended the onset date to April 8, 2019. Plaintiff's application was initially denied on August 29, 2019, and upon reconsideration on January 31, 2020. Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), which took place on September 20, 2020. The ALJ issued a decision on September 22, 2020, finding plaintiff not disabled within the meaning of the Act. The Appeals Council denied plaintiff's request for review on November 24, 2020. Therefore, the ALJ's decision is the Commissioner's final decision and subject to review by this court. 20 C.F.R. § 416.1481.
STANDARD OF REVIEW
The reviewing court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). This court must weigh the evidence that supports and detracts from the ALJ's conclusion and “‘may not affirm simply by isolating a specific quantum of supporting evidence.'” Garrison v. Colvin, 759 F.3d 995, 100910 (9th Cir. 2014) (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)). This court may not substitute its judgment for that of the Commissioner when the evidence can reasonably support either affirming or reversing the decision. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Instead, where the evidence is susceptible to more than one rational interpretation, the Commissioner's decision must be upheld if it is “supported by inferences reasonably drawn from the record.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (citation omitted); see also Lingenfelter, 504 F.3d at 1035.
SEQUENTIAL ANALYSIS AND ALJ FINDINGS
Disability is the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The ALJ engages in a five-step sequential inquiry to determine whether a claimant is disabled within the meaning of the Act. 20 C.F.R. § 416.920; Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006) (discussing Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999)).
At step one, the ALJ found plaintiff had not engaged in substantial gainful activity since her amended alleged onset date of April 8, 2019. At step two, the ALJ determined plaintiff suffered from the following severe impairments: bipolar I disorder; posttraumatic stress disorder (PTSD); borderline personality disorder; anxiety with panic; lumbar and cervical degenerative disc disease; and obesity (20 CFR 416.920(c)).
At step three, the ALJ found plaintiff did not have an impairment or combination of impairments that met or medically equaled a listed impairment. The ALJ next assessed plaintiff's residual functional capacity (“RFC”) and determined she could perform “light exertion work with lifting, carrying, pushing, and pulling 20 pounds occasionally and 10 pounds or less frequently, sitting for six hours of an eight-hour workday, standing and walking in combination for no more than six hours of an eight-hour workday. She can occasionally climb ramps and stairs, never climb ladders, ropes and scaffolds, and occasionally stoop, kneel, crouch, and crawl. The claimant can never work at unprotected heights. She can perform simple, routine tasks (reasoning level 2 or less) with simple work-related decisions. She can have occasional interactions with coworkers, the public, and supervisors. Time off task can be accommodated by the usual and customary rest breaks.”
At step four, the ALJ found plaintiff had no past relevant work. At step five, the ALJ found that-considering plaintiff's age, education, work experience, and residual functional capacity-there were jobs that existed in significant numbers in the national economy that plaintiff could perform, including small products assembler, marking clerk, and housekeeper. Thus, the ALJ concluded that plaintiff was not disabled.
DISCUSSION
I. Dr. Limon's Opinion
Plaintiff contends the ALJ erred in rejecting the opinion of consultative examiner Kimel Limon, Psy.D. Plaintiff saw Dr. Limon at the request of Disability Determination Services. Tr. 21.
When evaluating medical opinion evidence for claims filed on or after March 27, 2017, ALJs must apply 20 C.F.R. § 404.1520c for Title II claims and 20 C.F.R. § 416.920c for Title XVI claims. Revisions to Rules Regarding the Evaluation of Medical Evidence (Revisions to Rules), 82 Fed.Reg. 5844, available at 2017 WL 168819 (Jan. 18, 2017). Under these regulations, ALJs no longer “weigh” medical opinions, but rather determine which are most “persuasive.” 20 C.F.R. §§ 404.1520c(a)-(b), 416.920c(a)-(b). To that end, controlling weight is no longer given to any medical opinion. Revisions to Rules, 82 Fed.Reg. at 5867-68; see also 20 C.F.R. §§ 404.1520c(a), 416.920c(a). Instead, the Commissioner evaluates the persuasiveness of medical opinions based on (1) supportability, (2) consistency, (3) relationship with the claimant, (4) specialization, and (5) other factors, such as “evidence showing a medical source has familiarity with the other evidence in the claim or an understanding of our disability program's policies and evidentiary requirements.” 20 C.F.R. §§ 404.1520c(a), (c)(1)-(5), 416.920c(a), (c)(1)-(5).
The factors of “supportability” and “consistency” are considered to be “the most important factors” in the evaluation process. 20 C.F.R. §§ 404.1520c(c), 416.920c(c). Supportability means the extent to which a medical source supports the medical opinion by explaining the “relevant . . . objective medical evidence.” Woods v. Kijakazi, 32 F.4th 785, 791-92 (9th Cir. 2022) (citing 20 C.F.R. § 404.1520c(c)(1)). Consistency means the extent to which a medical opinion is “consistent . . . with the evidence from other medical sources and nonmedical sources in the claim.” Id. (citing 20 C.F.R § 404.1520c(c)(2)).
An ALJ must articulate how persuasive the ALJ finds the medical opinions and explain how the ALJ considered the supportability and consistency factors. 20 C.F.R. §§ 404.1520c(a), (b), 416.920c(a), (b); see Tyrone W. v. Saul, No. 3:19-CV-01719-IM, 2020 WL 6363839, at *7 (D. Or. Oct. 28, 2020). “The ALJ may but is not required to explain how other factors were considered, as appropriate, including relationship with the claimant (length, purpose, and extent of treatment relationship; frequency of examination); whether there is an examining relationship; specialization; and other factors, such as familiarity with other evidence in the claim file or understanding of the Social Security disability program's policies and evidentiary requirements.” Linda F. v. Comm'r Soc. Sec. Admin., No. C20-5076-MAT, 2020 WL 6544628, at *2 (W.D. Wash. Nov. 6, 2020). However, ALJs are required to explain “how they considered other secondary medical factors [if] they find that two or more medical opinions about the same issue are equally supported and consistent with the record but not identical.” Tyrone W., 2020 WL 6363839, at *6 (citing 20 C.F.R. §§ 404.1520c(b)(2) and 404.1520c(b)(3)).
Furthermore, the court must continue to consider whether the ALJ's decision is supported by substantial evidence. See Revisions to Rules, 82 Fed.Reg. at 5852 (“Courts reviewing claims under our current rules have focused more on whether we sufficiently articulated the weight we gave treating source opinions, rather than on whether substantial evidence supports our final decision.”); see also 42 U.S.C. § 405(g).
Dr. Limon conducted a psychodiagnostic examination on August 17, 2019, and diagnosed plaintiff as follows:
301.83 (F60.3) Borderline Personality Disorder
309.81 (F43.10) Posttraumatic Stress Disorder
296.42 (F31.12) Bipolar I Disorder, Moderate, Current or most recent episode manic
304.30 (Fl2.20) Cannabis Use Disorder, Moderate
Dr. Limon attributed plaintiff's PTSD to childhood physical and sexual abuse by her father who was a member of the Hell's Angels. Plaintiff described that she had a restraining order against her father since she was eight years old, and continued to fear him, even though he is deceased. Plaintiff claimed that, when she was a child, she was hospitalized 30 times for emotional problems. Although plaintiff denied current suicidal ideation, she reported a history of suicide attempts by overdosing, slitting her wrists, and jumping out of cars. She also burned her arms to relieve stress, and tried to shoot herself with a gun, but it jammed. Plaintiff claimed she was easily startled, suffered from excessive anxiety, had severe moods swings, became easily agitated, and loses her temper. She suffered from poor appetite and remained in bed for periods of time up to three weeks.
Plaintiff attended school through 11th grade and obtained a GED. She described school as unpleasant and claimed she was bullied and did not get along well with peers or authority figures. She worked as a housekeeper for three years and a private caregiver for one year. She claimed she was abused and threatened by her previous employer.
Plaintiff reported that she first consumed alcohol when her father put beer in her bottle. She has a history of daily methamphetamine use, but had not used for nine years. Plaintiff was incarcerated for 21 months for pulling a knife on her boyfriend and also for possessing methamphetamine. She has been off supervision since 2013, at which time she moved to Oregon.
Plaintiff stated she was able to take medications without reminders, attend to household responsibilities without assistance, and had no difficulty managing money or paying bills. She was able to use the telephone without assistance and could recall frequently dialed numbers. In a typical day, she made coffee, took care of animals, put on makeup, went “live” through social videos, cleaned house, did chores, went for walks, shopped, and went to the beach. She lived in a house with six people, got freebies off line, completed surveys, recycled, and sold things online. She relied on her family for financial support.
Dr. Limon observed plaintiff was oriented to all spheres. On the memory test, plaintiff could immediately recall three unrelated words (table, ball, cup), but could not recall any of the words five minutes later. Dr. Limon opined plaintiff was mildly impaired in her fund of knowledge/information. Dr. Limon further opined plaintiff was moderately impaired in performing calculations: plaintiff had difficulty performing serial 7s, subtracting 7 from 100 (93, 84), but was able to state that 2x3=6 and that there are 5 quarters in $2.25.
Dr. Limon opined that plaintiff's attention/concentration/ and persistence was within normal limits and her abstract thinking/reasoning was intact. However, he found plaintiff's judgment was markedly impaired. In sum, Dr. Limon concluded plaintiff was:
• Moderately to extremely impaired in her ability to understand, carry out, and remember instructions (both complex and one-two step).
• Moderately to extremely impaired in her ability to sustain concentration and attention, and persist in work-related activity at a reasonable pace due to a Major Depressive Disorder.
• Extremely impaired in her ability to maintain effective social interaction on a consistent and independent basis, with supervisors, co-workers, and the public.
• Has marked impairments in her adaptive functioning, requiring reminders. She is socially and occupationally impaired.Tr. 368.
The ALJ found Dr. Limon's opinion was not persuasive because:
• “Examinations by other sources, including the most recent treatment for mental impairments, shows intact performance on the same or similar testing, including the ability to recall three of three items immediately and on delay (Ex. B13F/1-7).”
• “The extreme limitations in social interaction are inconsistent with Dr. Limon's noted observations of good eye contact and being cooperative.”
• “The ability to sell things online and attend school is inconsistent with the assessed limitations in task completion as well as adaptive functioning.”Tr. 21.
With respect to the first reason, the ALJ cited to plaintiff's July 29, 2020 initial consultation with the Waterfall ROI Department. Id. Plaintiff presented with a friendly and cooperative attitude, normal and regular speech, an expansive mood, overreactive affect, and appropriate thought content. The following tests were conducted and conclusions were made:
Orientation: Person, Place, Time and Situation
Attention: Was able to spell WORLD forwards and backwards without difficulty.
Memory: Was able to repeat “cat, ball and sidewalk,” and recall at 3 and 5 minutes. Additionally, was able to list his own birthplace and current address. Language: able to correctly name a pen and watch.
Abstraction: Was able to correctly interpret 2 proverbs, “don't judge a book by its cover” and “don't count your chickens before they hatch.”
Knowledge: Was to list all 5 great lakes.
Judgment: GoodTr. 672.
The ALJ observed that “other sources” had shown “intact performance on the same or similar testing.” Tr. 21. The record reflects that, in 2013, when plaintiff saw Gail Wahl, Ph.D., she spelled “world” correctly forward and backward, she gave seven digits forward and three backward on the digit span test, her long-term memory was good, her math skills were excellent, she could count by 7s accurately, her answers in the areas of insight, judgment and similarities were good, and she gave a good interpretation of an abstract saying. Tr. 324.
However, more recently, when plaintiff saw Jennifer Northrop, QMHP, PCRI, on January 25, 2019, she spelled “world” forwards as “worwld” and backwards as “dlorow.” Additionally, when plaintiff was asked repeated “hat, river, pear,” she remembered only “pear and hat” after 10 minutes. Tr. 627.
Similarly, when plaintiff saw Linda Chastain, LPC, for a mental health assessment on January 30, 2020, she was unable to correctly spell the word “world” forwards and backwards and was unable to recall three words after ten minutes, leading Chastain to conclude that plaintiff's “[m]emory deficits were apparent.” Tr. 580. Chastain also concluded that plaintiff's judgment and insight were impaired. Tr. 580.
Any discussion or analysis of the testing conducted by Northrop and Chastain is notably missing from the ALJ's decision. See Garrison, 759 F.3d at 1018 n.23 (holding ALJ may not “cherry-pick” from the record to support the denial of benefits). In fact, the record reveals five instances where plaintiff was given the tests that Dr. Limon administered, and in three of those instances, plaintiff performed in ways that are consistent with Dr. Limon's findings. Thus, the ALJ's basis for rejecting Dr. Limon's opinion-that the “[e]xaminations by other sources . . . shows intact performance on the same or similar testing”-is not supported by substantial evidence in the record.
The ALJ also rejected Dr. Limon's opinion because [t]he extreme limitations in social interaction are inconsistent with Dr. Limon's noted observations of good eye contact and being cooperative.” Tr. 21. But the ALJ did not address Dr. Limon's observations that plaintiff “appeared manic at the time of the interview” and “her affect, as expressed in speech and demeanor, [was] characterized with an excessive range of emotion.” Tr. 366.
Finally, the ALJ rejected Dr. Limon's opinion because plaintiff's “ability to sell things online and attend school is inconsistent with the assessed limitations in task completion as well as adaptive functioning.” Tr. 21. But the extent to which plaintiff sold things online is unclear. Moreover, plaintiff described that she sold things online in the context of her financial situation, which included relying on her family for financial support and obtaining freebies online. Tr. 365. This suggests that her online sales activities were not extensive.
As for college, it appears that plaintiff only began attending community college in November 2018. See Tr 377 (resume); Tr. 642 (June 2018 records indicating plaintiff was completing a college application). Records indicate that plaintiff was attending school full time through June 2019. Tr. 378, 380, 384, 471, 607. However, when plaintiff completed her function report in November 2019, she did not describe that she was attending school at all. Tr. 285. Thus, it appears plaintiff's attempt to attend school may have been short-lived. Plus, the details of plaintiff's school attendance and any accommodations she may have received are unclear. See Fillmore v. Comm'r of Soc. Sec., No. 2:20-CV-1599-DMC, 2021 WL 4206764, at *17 (E.D. Cal. Sept. 16, 2021) (holding that the limitations on the plaintiff's ability to attend college classes did not necessarily describe someone capable of maintaining full-time competitive employment, but “[t]o the contrary, they indicate significant limitations if translated to a work setting”). These circumstances are relevant to determining whether plaintiff's ability to attend school is inconsistent with her subjective symptom testimony or meets the threshold for transferable work skills, Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007), which the ALJ can assess further on remand.
II. Credit-as-True Analysis
When a court determines the Commissioner erred in some respect in making a decision to deny benefits, the court may affirm, modify, or reverse the Commissioner's decision “with or without remanding the cause for a rehearing.” Treichler v. Commissioner of Social Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014) (quoting 42 U.S.C. § 405(g)). In determining whether to remand for further proceedings or immediate payment of benefits, the Ninth Circuit employs the “credit-as-true” standard when the following requisites are met: (1) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, (2) the record has been fully developed and further proceedings would serve no useful purpose, and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the plaintiff disabled on remand. Garrison, 759 F.3d at 1020. Even if all of the requisites are met, however, the court may still remand for further proceedings “when the record as a whole creates serious doubt as to whether the claimant is, in fact, disabled[.]” Id. at 1021.
Here, the first requisite of the Garrison test is met. As discussed above, the ALJ improperly rejected Dr. Limon's opinion. However, the record as a whole creates serious doubt as to whether plaintiff is disabled. See, e.g., Tr. 378 (“going to school full-time,” “[p]assed the semester,” “[g]oing back to work because her old job wants her back,” “[r]eally good with computers now”); Tr. 380 (same); Tr. 84 (opinion by Dr. William Nisbet that plaintiff can “independently remember her medications, complete household chores and shop, which does not support an extreme impairment”). Therefore, this case must be remanded for further proceedings rather than the award of benefits.
ORDER
The Commissioner's decision is REVERSED and REMANDED for further proceedings consistent with this opinion.