Harding v. O'Malley

1 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 2 Oct 22, 2024 3 SEAN F. MCAVOY, CLERK 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 TORIE H.,1 No. 1:24-cv-03072-EFS 7 Plaintiff, ORDER REVERSING THE ALJ’S 8 v. DENIAL OF BENEFITS, AND REMANDING FOR PAYMENT OF 9 MARTIN O’MALLEY, Commissioner of BENEFITS Social Security, Defendant.

13 Plaintiff Torie H. appeals the denial of benefits by the Administrative Law 14 Judge (ALJ). The parties agree the ALJ erred when analyzing Plaintiff’s testimony 15 and the medical opinions, but the parties disagree about the appropriate remedy.

16 Plaintiff seeks a remand for payment of benefits, while the Commissioner seeks a 17 remand for further proceedings. After reviewing the record and relevant authority, 18 the Court remands the case for payment of benefits.

1 To address privacy concerns, the Court refers to Plaintiff by first name and last initial or as “Plaintiff.” See LCivR 5.2(c).

1 I. Background 2 In September 2020, Plaintiff filed an application for benefits under Title 16, 3 alleging disability due to anxiety, compulsion disorder, depression, and panic 4 attacks.2 Plaintiff claimed an onset date of March 1, 2012.3 5 Plaintiff’s claims were denied at the initial and reconsideration levels.4 On 6 April 20, 2023, Plaintiff attended a hearing with her attorney before ALJ 7 Evangeline Mariano-Jackson.5 Plaintiff testified, and a vocational expert Michael 8 Swanson testified.6 On August 25, 2023, ALJ Mariano-Jackson issued a decision 9 denying benefits.7 Plaintiff filed a timely request for review of the ALJ decision, 10 and the Appeals Council denied review.8 Following the Appeals Council denial, 11 Plaintiff filed a timely appeal to this Court.

12 The ALJ found: 13 • Step one: The prior administrative decision of ALJ Glenn Myers dated 14 September 5, 2019, is administratively final but Plaintiff has rebutted AR 227, 244.

3 AR 227.

4 AR 114, 130.

5 AR 33-59.

6 Id. AR 14-32.

8 AR 1-6.

1 the presumption of non-disability and the period at issue starts 2 September 9, 2020, the date of application.

3 • Step One: Plaintiff had not engaged in substantial gainful activity 4 since September 9, 2020.

5 • Step two: Plaintiff had the following medically determinable severe 6 impairments: major depressive disorder, post-traumatic stress 7 disorder (PTSD), and panic disorder.

8 • Step two: Plaintiff’s physical impairments including neck, back, and 9 shoulder pain with shortness of breath are non-severe.

10 • Step three: Plaintiff did not have an impairment or combination of 11 impairments that met or medically equaled the severity of one of the 12 listed impairments and specifically considered listings 12.04, 12.06, 13 and 12.15.

14 • RFC: Plaintiff had the RFC to perform a full range of work at all 15 exertional levels except that she has the following nonexertional 16 limitations: 17 [Plaintiff] can understand, remember and carry out simple, routine and repetitive tasks requiring no more than 1-2 step 18 instructions and involving only simple work-related decisions and occasional decision making and changes in the work 19 setting; she can never perform assembly line work; she can tolerate occasional, brief and superficial interaction with 20 supervisors, co-workers and the public; and she can work in proximity to, but not in coordination with, co-workers. • Step four: Plaintiff has no past relevant work.

1 • Step five: considering Plaintiff’s RFC, age, education, and work 2 history, Plaintiff could perform work that existed in significant 3 numbers in the national economy, such as a floor waxer (DOT 4 381.687-034), a commercial cleaner (DOT 381.687-014), and a maid, 5 housekeeper (DOT 323.687-014).9 6 Plaintiff timely requested review of the ALJ’s decision, arguing that the ALJ 7 committed several errors.

8 II. Analysis 9 The parties agree the ALJ erred in her evaluation of Plaintiff’s subjective 10 testimony and also agree that the ALJ erred in evaluating the medical opinions of 11 consultative examiners Patrick Metoyer, PhD, and Thomas Genthe, PhD; and state 12 agency consultants Leslie Postovoit, PhD, and Suzanne Castro, PhD. The parties 13 disagree, however, as to whether the Court should remand for payment of benefits 14 or for more proceedings. As is explained below, the agreed-upon error calls for a 15 remand for payment of benefits.

16 A. Remand Standard 17 When a harmful error occurs in the administrative proceeding, remand for 18 further administrative proceedings is the usual course.10 In comparison, in order AR 19-27.

10 Treichler v. Comm’r of Social Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014) (quoting Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)).

1 for the court to consider remand for payment of benefits, three factors must be 2 satisfied: 3 (1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to 4 provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly 5 discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand.11 7 When these factors are satisfied, the decision whether to remand for benefits or 8 further proceedings is within the court’s discretion, as it “is a fact-bound 9 determination that arises in an infinite variety of contexts.”12 10 B. Remand Analysis 11 1. The ALJ’s Evaluation of Plaintiff’s Subjective Testimony 12 The second remand factor is satisfied: the parties agree the ALJ failed to 13 provide legally sufficient reasons for rejecting Plaintiff’s subjective testimony.

14 Plaintiff asserts that a remand for calculation of benefits should be entered because 15 all three prongs required are satisfied. The Commissioner asserts that the first 16 prong is not satisfied because even though the ALJ cited to the inconsistency of 17 Plaintiff’s testimony to the objective medical evidence in her analysis, she also cited 18 in other portions of the opinion to the inconsistency between Plaintiff’s testimony Id. at 1101. See Garrison v. Colvin, 759 F. 3d 995, 1010 (9th Cir. 2014), Treichler, 775 F.3d at 1100 (quoting Harman v. Apfel, 211 F.3d 1172, 1177 (9th Cir. 2000)).

1 regarding the severity of her symptoms and her daily activities.13 The 2 Commissioner also argued that the medical record indicates that Plaintiff’s 3 condition improved with medication and she was not always compliant with her 4 medication.14 In her reply brief, Plaintiff argued that the issue of improvement 5 with medication was not raised by the ALJ and amounted to a post hoc 6 rationalization on the Commissioner’s part.15 7 The Court agrees with Plaintiff that the Commissioner errs in raising an 8 issue which was not considered by the ALJ. At no point in the decision does the 9 ALJ discuss the fact that Plaintiff’s condition improved with medication, nor did 10 she raise any question as to Plaintiff’s compliance with medication.16 Plaintiff is 11 correct that raising the issue for the first time on appeal amounts to an 12 impermissible post hoc reasoning on the Commissioner’s part.17 ECF No. 14.

14 Id. ECF No. 15.

16 AR 14-32.

17 Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012); SSR 17-2p; see also Bray v. Comm’r of Soc. Sec. Adm., 554 F.3d 1219, 1226-27 (9th Cir. 2009) (recognizing that the ALJ’s decision must be analyzed based on his reasoning and findings and “not post hoc rationalizations that attempt to intuit what the adjudicator may have been thinking”).

1 Here, the ALJ’s discussion of Plaintiff’s testimony focused on the consistency 2 of Plaintiff’s testimony with the objective findings made on mental status 3 examinations by Plaintiff’s treating sources.18 The ALJ reasoned: 4 After careful consideration of the evidence, the undersigned finds that the claimant’s medically determinable impairments could reasonably 5 be expected to cause the alleged symptoms; however, the claimant’s statements concerning the intensity, persistence and limiting effects 6 of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in 7 this decision.

8 The claimant has major depressive disorder; posttraumatic stress disorder; and panic disorder (see e.g. B2F4; B5F3; B9F4) with 9 reported symptoms to include anxiety and depression; poor memory and concentration; difficulty interacting with others; hypervigilance; 10 and irritability (see e.g. B5F4, 7; B6F3; B9F2).

11 Providers frequently described her as anxious or depressed with mood lability (see e.g. B4F5; B5F9; B7F3; B9F19); her GAD-7 and PHQ-9 12 scores are consistent with anxiety and depression (see e.g. B4F65; B5F11; B7F5); and she has sometimes had abnormal findings on 13 mental status examinations such as a tangential thought process or pressured speech (see e.g. B4F5, 20; B5F9; B9F7).

However, while the claimant has some social and cognitive deficits, 15 the severity and frequency of her reported symptoms and limitations are out of proportion to the longitudinal observations and findings by 16 providers during routine appointments.19 17 The ALJ then went on to cite to mental status examination findings from eleven 18 visits between July 2020 and January 2023. Thus, Plaintiff is correct that the ALJ AR 22-23.

19 Id. 1 focused on the objective findings in mental status examinations when assessing 2 Plaintiff’s testimony.

3 The Commissioner argues that when making a determination at step three 4 the ALJ also considered that Plaintiff’s testimony was not consistent with her daily 5 activities.20 Plaintiff argued in her reply that the ALJ’s consideration of daily 6 activities at step three did not excuse her failure to consider them when 7 considering Plaintiff’s testimony.

8 The ALJ must identify what symptom claims are being discounted and 9 clearly and convincingly explain the rationale for discounting the symptoms with 10 supporting citation to evidence.21 This requires the ALJ to “show his [or her] work” ECF No. 14.

21 Smartt v. Kijakazi, 53 F.4th 489, 499 (9th Cir. 2022). Factors to be considered by the ALJ when evaluating the intensity, persistence, and limiting effects of a claimant’s symptoms include: 1) daily activities; 2) the location, duration, frequency, and intensity of pain or other symptoms; 3) factors that precipitate and aggravate the symptoms; 4) the type, dosage, effectiveness, and side effects of any medication the claimant takes or has taken to alleviate pain or other symptoms; 5) treatment, other than medication, the claimant receives or has received for relief of pain or other symptoms; 6) any non-treatment measures the claimant uses or has used to relieve pain or other symptoms; and 7) any other factors concerning the claimant’s functional limitations and restrictions due to pain or other symptoms.

1 and provide a “rationale . . . clear enough that it has the power to convince” the 2 reviewing court.22 3 Having reviewed the ALJ’s findings at step three, the Court concludes that 4 the Commissioner’s argument is unpersuasive. While the Commissioner is correct 5 that the ALJ did reference daily activities at step two the reference was cursory 6 and the bulk of her analysis focused on the inconsistency of Plaintiff’s allegations 7 with the objective findings on mental status examinations, similar to her later 8 analysis of Plaintiff’s credibility.23 The ALJ articulated: 9 In understanding, remembering or applying information, the claimant has a mild limitation. In connection with her application, the claimant 10 alleges that her conditions affect her memory and ability to follow instructions. However, during routine appointments she has been 11 alert and oriented; she has had intact or otherwise unremarkable memory on mental status examinations; and she had generally intact 12 cognition on formal mental status testing in June 2021 with a goaloriented thought process; intact memory with a normal fund of 13 knowledge; and intact insight and judgment (B4E; B4F20; B5F4, 9; B6F3-4; B7F4, 9; B9F7, 9, 17, 19, 35; finding #4).

In interacting with others, the claimant has a moderate limitation. In 15 connection with her application, the claimant alleges that she has difficulty with interacting with others and providers sometimes noted 16 her to present as irritable with an anxious or depressed mood and affect. However, she was able to interact appropriately with providers, 17 who described her as cooperative and pleasant; she sometimes had a Soc. Sec. Rlg. 16-3p, 2016 WL 1119029, at *7; 20 C.F.R. §416.929(c); Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014).

22 Smartt v. Kijakazi, 53 F.4th 489, 499 (9th Cir. 2022) (alteration added).

23 AR 20-21.

1 normal mood and affect; and (see e.g. B4E; B2F7; B4F20; B5F4, 9; B6F3; B7F4, 9; B9F7, 9, 17, 19, 35; finding #4).

With regard to concentrating, persisting or maintaining pace, the 3 claimant has a moderate limitation. In connection with her application, the claimant alleges her conditions affect her 4 concentration and ability to complete tasks and she had difficulty with Serial 7s on formal mental status testing. However, she was also alert 5 and oriented during routine appointments; she had a normal attention span with normal concentration on mental status examination; and 6 during formal mental status testing she was able to follow a three- step command and had no difficulty following the conversation (see 7 e.g. B4E; B4F20; B5F4, 9; B6F; B7F4, 9; B9F7, 9, 17, 19, 35; finding #4).

As for adapting or managing oneself, the claimant has experienced a 9 moderate limitation. In connection with her application, the claimant reported that she had difficulty with stress and changes in routine.

10 However, she also reported that she was able to prepare her own meals and complete her own housework; she reported that she was 11 able to go outside alone; and she did not indicate that she had any difficulty with activities of daily living. She likewise reported to 12 providers and examiners that she was able to complete her own activities of daily living, and during appointments and examinations 13 she was noted to have appropriate or otherwise unremarkable hygiene and grooming (see e.g. B4E; B2F2-3, 6; B4F20; B5F4, 9; B6F4; B7F4, 14 9; B9F7, 9, 17, 19, 35; finding #4).24 15 Here, when considering the first three broad functional areas the ALJ did 16 not consider anything but the consistency of Plaintiff’s allegation and the objective 17 findings on mental status examination. It was with regard to the fourth and last 18 broad functional area that the ALJ considered Plaintiff’s hygiene and grooming 19 during appointments as well as the activities of daily living that she reported on Id. 1 the Adult Function Report that Plaintiff submitted in October 2020.25 Moreover, 2 the ALJ’s consideration of Plaintiff’s statements in her Adult Function Report are 3 flawed.

4 In her Adult Function Report, Plaintiff stated that she was unable to work 5 because most work settings have a need for interpersonal interaction and that has 6 become increasingly difficult for her to manage without anxiety and panic 7 attacks.26 She stated that she has no difficulty with hygiene and grooming.27 She 8 stated that she needed reminders to take her medication, and that she cooked 9 microwave meals and simple snacks but did not have the energy to make large 10 meals and tried to make an effort to make a “full meal” twice a month.28 Plaintiff 11 said she can sweep her patio, clean, and do laundry and tries to do one cleaning 12 chore per week but it can take all day.29 Plaintiff said that she tries to go out once a 13 day to check her mail but does it at night when she is not exposed and has less 14 anxiety.30 She said that she has not had a license for 5 years and that her friend 15 shops for her because she does not like going into stores because of gathering of AR 21, quoting AR 255-262.

26 AR 255.

27 AR 256.

28 Id. Id. AR 258.

1 people and that she has not had a bank account in a long time and has stress and 2 becomes overwhelmed in handling money.31 Plaintiff said she reads but short 3 amounts, that she texts and talks to immediate family and close friends daily to 4 weekly, and that the only place she goes out to is the doctor’s office.32 She said she 5 has difficulty communicating with others.33 She indicated that she has problems 6 with squatting, sitting, hearing, seeing, memory, completing tasks, concentration, 7 following instructions, using hands, and getting along with others.34 Plaintiff said 8 she can follow written directions if it is not too many steps and that she has 9 anxiety and gets overwhelmed with spoken directions and that she gets along with 10 authority figures but avoids interaction with others due to anxiety.35 She said she 11 does not handle stress or changes in routine well and that she wishes she was able 12 to engage with others in public places but is physically and emotionally unable to.36 13 The Court finds stark contrast between Plaintiff’s statements above and the 14 following summation the ALJ made of the statements: “. . .[S]he also reported that 15 she was able to prepare her own meals and complete her own housework; she Id. AR 259.

33 Id. AR 260.

35 Id. AR 261.

1 reported that she was able to go outside alone; and she did not indicate that she 2 had any difficulty with activities of daily living.”37 To say that Plaintiff indicated no 3 difficulty with activities of daily living is inconsistent with Plaintiff’s reports that 4 she is unable to go to the store or to even check her mailbox during daylight hours 5 because she avoids others and to say she is capable of making meals is inconsistent 6 with the fact that Plaintiff is underweight enough at her height of 5’7” and weight 7 of 91 pounds to meet the listing for gastrointestinal disease and stated that she has 8 to make an effort to force herself to cook two meals each month.

9 The Court concludes that the only reasons given by the ALJ for discounting 10 Plaintiff’s allegations during her analysis at step three are they are inconsistent 11 with the objective finding made during the medical status examinations and a 12 cursory finding that they were inconsistent with the fact that she was groomed 13 during her medical appointments and did not indicate any difficulty with activities 14 of daily living in her Adult Function Report. As noted, the fact that Plaintiff’s 15 allegations are not fully supported by objective findings is not a sole basis to find 16 her testimony not credible. As to the fact that Plaintiff was well-groomed, that is 17 consistent with her reports in her Adult Function Report that she has no difficulty 18 grooming.38 To read the Adult Function Report, which indicates an extreme 19 limitation in leaving her home or being with others without panic, as stating she AR 21.

38 AR 256.

1 indicates no difficulty with activities of daily living is a gross mischaracterization.

2 For this reason, the ALJ’s finding at step three cannot be considered as a basis to 3 rehabilitate the deficiencies in her consideration of Plaintiff’s credibility later in 4 the decision.

5 Because the Court finds that there is no reasonable conflict in evidence 6 which requires further consideration with regard to this issue, the Court concludes 7 that a remand for payment of benefits is warranted.

8 2. The ALJ’s Evaluation of the Medical Opinions: This Issue is Moot 9 The ALJ was required to consider and evaluate the persuasiveness of the 10 medical opinions and prior administrative medical findings.39 The factors for 11 evaluating the persuasiveness of medical opinions and prior administrative 12 medical findings include, but are not limited to, supportability, consistency, 13 relationship with the claimant, and specialization.40 Supportability and consistency 14 are the most important factors,41 and the ALJ must explain how she considered the 15 supportability and consistency factors when reviewing the medical opinions and 16 support her explanation with substantial evidence.42 When considering the ALJ’s

39 20 C.F.R. §416.920c(a), (b).

40 20 C.F.R. §416.920c(c)(1)–(5).

41 Id. §416.920c(b)(2).

42 Id. § 416.920c(b)(2), (c)(1)–(5); Woods v. Kijakazi, 32 F.4th 785 (9th Cir. 2022) (“The agency must articulate . . . how persuasive it finds all of the medical opinions 1 findings, the Court is constrained to the reasons and supporting explanation 2 offered by the ALJ.43 3 Because the Court has already found that the ALJ’s error in evaluating 4 Plaintiff’s testimony warrants remand for payment of benefits, it will address this 5 issue briefly. First, the Commissioner errs in arguing that the ALJ merely 6 committed an “articulation error” in her explanation regarding the opinions of 7 state agency consultants Dr. Postovoit and Dr. Castro.44 The Commissioner is 8 correct that the ALJ committed error in failing to address the supportability factor 9 when assessing the two opinions.45 But that does not constitute a “technical error” 10 because the regulation requires the ALJ to consider both the supportability and 11 consistency factor. In assessing the supportability of an opinion, the ALJ is to 12 consider the supporting explanation provided by the medical source and the extent from each doctor or other source and explain how it considered the supportability and consistency factors in reaching these findings.”) (cleaned up).

43 See Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014) (recognizing court review is constrained to the reasons the ALJ gave).

44 ECF No. 14.

45 AR 24.

1 of the relevant objective medical evidence in the doctor’s own records supporting 2 the opinion.46 3 Additionally, as Plaintiff points out, there are also other substantive errors 4 in the ALJ’s analysis, including the fact that when considering the consistency of 5 Dr. Postovoit and Dr. Castro’s opinions the ALJ did not consider that they were 6 inconsistent with the opinions of both consultative examiners. Whether an opinion 7 is consistent with the evidence from other medical sources and nonmedical sources 8 is a critical factor.47 9 Moreover, the Court finds it perplexing that when considering the opinions 10 of Dr. Postovoit and Dr. Castro the ALJ found them persuasive despite the fact 11 that Dr. Postovoit and Dr. Castro did not review the updated record, but the first 12 reason that she gave for finding the opinions of consultative examiners Dr. Genthe 13 and Dr. Metoyer to be unpersuasive is that they did not review the updated 14 record.48 15 With regard to the opinions of Dr. Genthe and Dr. Metoyer, the ALJ gave no 16 explanation why the fact that they did not review the updated medical record

46 20 C.F.R. § 416.927(c); Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009) (recognizing that a medical opinion may be rejected if it is conclusory or inadequately supported).

47 20 C.F.R. § 416.920c(b)(2), (c)(2).

48 AR 24-26.

1 rendered their opinions unpersuasive when, unlike Dr. Postovoit and Dr. Castro, 2 they had a chance to personally examine Plaintiff. The ALJ additionally failed to 3 consider when considering the consistency factor that Dr. Metoyer and 4 Dr. Genthe’s opinions were consistent with each other.49 5 The Commissioner’s attempts to cure the ALJ’s error in evaluating 6 Dr. Genthe and Dr. Metoyer’s opinions by labeling them to be “extreme” and 7 “vague” respectively, is unpersuasive. As noted, Dr. Genthe’s opinions are 8 consistent with those of Dr. Metoyer, who is also an impartial examiner and who is 9 the only other opining source that examined Plaintiff.

10 Additionally, the Court finds nothing “vague” about Dr. Metoyer’s language 11 that Plaintiff had moderate or marked impairments in functioning. The 12 Administration’s own “B” criteria for assessing the severity of mental impairments 13 at step three categorizes impairments as mild, moderate, marked, and extreme.50 14 Moreover, Dr. Metoyer examined Plaintiff and rendered an opinion at the request 15 of the Commissioner. He has conducted consultative examinations for the 16 Commissioner for a number of years and is familiar with the language and 17 standards used by the Administration. When Dr. Metoyer rendered an opinion at 18 the Commissioner’s request as to the severity of Plaintiff’s condition utilizing 19 language provided in the Administration’s own regulations, that language can 20 C.F.R. § 416.920c(b)(2), (c)(2).

50 20 C.F.R. §§ 416.920(d), 416.925, and 416.926.

1 hardly be characterized as “vague” or “ambiguous” and characterizing it as such 2 does not excuse the ALJ’s admitted errors in evaluating Dr. Metoyer’s opinions.

3 III. Conclusion 4 Remand for an award of benefits is appropriate. Plaintiff has met her 5 burden to show that all three prongs of the test have been met. The Court 6 concludes there is no useful purpose in remanding for furthering proceedings.51 7 Accordingly, IT IS HEREBY ORDERED: 8 1. The ALJ’s nondisability decision is REVERSED, and this matter is 9 REMANDED to the Commissioner of Social Security for 10 payment of benefits.

11 2. The Commissioner’s Motion to Remand, ECF No. 14, is GRANTED.

12 3. The Clerk’s Office is to term Plaintiff’s brief, ECF No. 10, and enter 13 JUDGMENT in favor of Plaintiff REVERSING and REMANDING 14 the matter to the Commissioner of Social Security for immediate 15 calculation and award of benefits from the alleged disability onset 16 date, and CLOSE the case.

17 IT IS SO ORDERED. The Clerk’s Office is directed to file this order and 18 provide copies to all counsel.

51 See Vasquez v. Astrue, 572 F.3d 586, 593–94 (9th Cir. 2009).

DATED this 22"? day of October, 2024 EDWARD F. SHEA Senior United States District Judge ORDER - 19