Emch v. Commissioner of Social Security

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 10 CORBIN E., CASE NO. 2:23-CV-1729-DWC 11 Plaintiff, v. ORDER RE: SOCIAL SECURITY 12 DISABILITY APPEAL COMMISSIONER OF SOCIAL 13 SECURITY, 14 Defendant.

15 Plaintiff filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of the denial of his applications for Supplemental Security Income (SSI) benefits and Disability Insurance Benefits (DIB). Pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73, and Local Rule MJR 13, the parties have consented to proceed before the undersigned. Dkt. 2. After considering the record, the Court concludes that this matter must be reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings.

21 I. BACKGROUND 22 Plaintiff filed applications for SSI and DIB on August 1, 2017. Administrative Record (AR) 241–54. He alleged disability beginning November 1, 2015. See id. After his applications were denied initially and upon reconsideration, he filed a written request for a hearing. AR 116– 17. An Administrative Law Judge (ALJ) held hearings in June 2019 (AR 37–42 and September 2019 (AR 43–50) and issued a decision finding Plaintiff not disabled in October 2019 (AR 12– 36) which was subsequently reversed and remanded in a decision by U.S. Magistrate Judge Richard Creatura (AR 599–608). The ALJ held a new hearing on August 9, 2023. AR 534–65.

6 He issued a decision finding Plaintiff not disabled on September 13, 2023. AR 503–27. Plaintiff failed to file exceptions with the Appeals Council, making the ALJ’s decision Commissioner’s final decision subject to judicial review. See 20 C.F.R. §§ 404.984(a), 416.1484(a). Plaintiff filed a Complaint in this Court on November 15, 2023. Dkt. 5.

10 II. STANDARD 11 Pursuant to 42 U.S.C. § 405(g) this Court may set aside the Commissioner's denial of social security benefits if, and only if, the ALJ's findings are based on legal error or not supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)).

15 III. DISCUSSION A. Medical Opinions 17 Plaintiff challenges the ALJ’s assessment of the medical opinions of Mark Hawley, PhD; Luci Carstens, PhD; and Nicholas Goodwin, DNP. See Dkt. 9 at 2–15. Under the 2017 regulations applicable to Plaintiff’s claim, an ALJ considers all medical opinions and prior administrative findings in the record without giving any deference or specific evidentiary weight to any of them. 20 C.F.R. §§ 404.1520c(a), 416.920c(a). The ALJ must explain how he considered the persuasiveness of each opinion using, at a minimum, the factors of supportability and consistency. 20 C.F.R. § 404.1520c(a)–(b), 416.920c(a)–(b). The persuasiveness determination must be supported by substantial evidence. Woods v. Kijikazi, 32 F.4th 785, 792 (9th Cir. 2022).

3 1. Dr. Goodwin 4 In June 2023, Dr. Goodwin opined several marked limitations in Plaintiff’s abilities to sustain concentration and persistence, interact socially, and adapt to changes. AR 811–12.

6 The ALJ found Dr. Goodwin’s opinion unpersuasive. With respect to supportability, the ALJ noted Dr. Goodwin “simply checked boxes and provided little explanation” for his opinion.

8 AR 517. However, “an opinion cannot be rejected merely for being expressed as answers to a check-the-box questionnaire.” Ford v. Saul, 950 F.3d 1141, 1155 (9th Cir. 2020) (citation omitted); see also Kitchen v. Kijakazi, 82 F.4th 732, 740–41 (9th Cir. 2023) (affirming “discounting of a medical opinion set forth in a checkbox form with little to no explanation”) (emphasis added); Stiffler v. O’Malley, 102 F.4th 1102, 1107 (9th Cir. 2024) (affirming rejection of medical opinion that “included only conclusions regarding functional limitations without any rationale for those conclusions”) (emphasis added). Here, Dr. Goodwin explained the opinion was based on Plaintiff’s anxiety episodes. See AR 814 (“During an anxiety event he is unable to calm, travel or interact in anyway. These events are often untriggered and can happen daily.”).

17 Thus, Dr. Goodwin did not fail to provide any rationale for his conclusions and this was not a sufficient basis on which to discount the opinion.

19 The ALJ found the opinion inconsistent with treatment notes showing Plaintiff was cooperative, pleasant, engaged, alert, attentive, and oriented, displayed intact judgment, and had focused attention at some appointments. See AR 517. However, the ALJ erred by “improperly cherry-picking,” Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014), some medical evidence without acknowledging treatment notes indicating Plaintiff continued to have the significant anxiety and depressive episodes on which Dr. Goodwin’s opinion was based. See e.g., AR 817 (“client is agitated today, pacing and trying to calm self”); 821 (same); 826 (“experiencing anxiety episode and during virtual appt told his [significant other] he couldn’t do it or participate and left . . . . This is a regular almost daily occurrence of crippling anxiety. . . . [W]ill occur randomly[.]”); 903 (“difficult to assess progress due to high anxiety due to apartment installation and fire alarm checking”); 907 (“Cont to have daily depression”); 918 (“mood swings”); 933 (“reports more depression lately”); 938 (“high anxiety today,” “was struggling today, mostly spoke with [significant other], he was pacing in background”).

9 The ALJ found the opinion inconsistent with “statements of improvement with treatment.” AR 517 (citing AR 442, 794–95, 868, 903). But “some improvement” in a person’s symptoms “does not mean that the person’s impairments no longer seriously affect her ability to function in a workplace.” See Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001). To the extent the ALJ found Plaintiff’s symptoms were resolved from treatment, such a finding was not supported by substantial evidence. Most of the evidence cited by the ALJ does not suggest Plaintiff’s anxiety and depressive episodes were resolved or even improved from treatment. See AR 794–95 (only listed effect of medication “more energy, sleeping a bit better”); 868 (“reports diazepam was more effective [than Xanax]” but “cont[inues] to have daily depression”); 903 (“Vyvanse helped with motivation and volution” but nevertheless that it was “difficult to assess progress due to high anxiety”). The single treatment note indicating “anxiety is lessened” (AR 442) was from September 2017, preceding the above-cited treatment notes indicating Plaintiff continued to have anxiety episodes.

22 The ALJ also found the opinion inconsistent with Plaintiff’s activities of driving, visiting and keeping in touch with friends and family, playing videogames, and going to the library and grocery store. AR 517. However, Plaintiff testified he stopped driving in 2018 (AR 539) and the ALJ erred by failing to acknowledge evidence suggesting Plaintiff’s ability to play video games was oftentimes affected by his impairments. See 821 (“struggling to focus on tv and video games”); 823 (same). Although Plaintiff’s keeping in touch with friends and family may be inconsistent with some social limitations, it is not necessarily inconsistent with limitations in getting along with coworkers or supervisors who Plaintiff does not know, an area Dr. Goodwin opined Plaintiff would be markedly limited in. See AR 813.

8 In sum, the ALJ failed to properly evaluate Dr. Goodwin’s medical opinion.1 The Commissioner does not dispute that such an error requires reversal, so the Court reverses accordingly. See Dkt. 14; Ferguson v. O’Malley, 95 F.4th 1194, 1204 (9th Cir. 2024) (“The Commissioner does not contend that the ALJ’s error was harmless. Consequently, we reverse the judgment . . . .”).

13 2. Dr. Hawley 14 In June 2019, consultative examiner Dr. Hawley opined Plaintiff was limited in interacting with the public and was “not capable of full-time employment.” AR 474. The RFC encompassed a reference to Plaintiff having limited interaction with the public. AR 517. Also, the ALJ stated the statement about not being capable of full-time employment was an opinion on an issue reserved to the Commissioner. 20 C.F.R. § 416.920b(c)(3)(i)); AR 517. Plaintiff raises no argument challenging these assessments (see Dkt. 9 at 7–10).

20 Dr. Hawley also opined Plaintiff had marked limitations in his abilities to adapt to changes, maintain regular attendance, interact with coworkers, and meet workplace interpersonal The ALJ also said Dr. Goodwin did not review treatment notes or examine Plaintiff (AR 517) but Commissioner acknowledges this was incorrect (see Dkt. 14 at 5 n.2).

1 demands. AR 474. The ALJ discounted this part of the opinion because “Dr. Hawley did not provide any explanations to support these opined marked limitations.” AR 517. This finding was supported by substantial evidence and served as a valid reason for discounting the opinion.

4 Although Dr. Hawley conducted a mental status examination and described some of Plaintiff’s medical history (see AR 472–74), the mental status examination found only mild and moderate impairments and Dr. Hawley’s accompanying explanation does provide his rationale for the opined limitations. Plaintiff contends this Court found the ALJ’s supportability finding erroneous in its previous determination (Dkt. 9 at 8) but this Court decided a different issue—it found the ALJ erred by discounting Dr. Hawley’s opinion because it was based on Plaintiff’s subjective complaints (AR 604), not that the ALJ erred by discounting the opinion because it provided no explanation.

12 Having found the ALJ reasonably rejected Dr. Hawley’s opinion based on its lack of supportability, the Court need not determine whether the remaining reasons for rejecting the were erroneous, as any error with respect to those reasons would be harmless. See Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012); see also Woods, 32 F.4th at 792–93 (finding proper consideration of one of the supportability-and-consistency factors to be an adequate basis to affirm an ALJ’s decision).

18 B. Remaining Issues 19 Having found that the ALJ erred in considering Dr. Goodwin’s medical opinion, the Court need not consider whether the ALJ erred in evaluating Plaintiff’s subjective testimony and Dr. Carstens’ medical opinion. Rather, on remand, Commissioner is directed to reassess all of the medical evidence and, if appropriate, reconsider its residual functional capacity assessment and assessments at step four and step five.

1 C. Remand 2 Plaintiff requests the Court remand this matter with directions to award benefits. Dkt. 9 at 17–18. A remand for award of benefits is proper only if 4 (1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for 5 rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find 6 the claimant disabled on remand.

7 Trevizo, 871 F.3d at 682–83 (citation omitted).

8 The Court has found that the second element is met, as the ALJ failed to provide legally sufficient reasons for rejecting the medical opinion of Dr. Goodwin. However, even if the opinions of Drs. Goodwin and Carstens were credited as true, they would not require a finding of disability given the contrary opinions of state agency consultants (AR 516). See 20 C.F.R. § 12 416.920c(a) (new regulations do not require ALJ to defer or give weight to treating or examining physicians); Woods, 32 F.4th at 791 (recognizing that the revised regulations stemmed, in part, from disagreement with Ninth Circuit practice of crediting-as-true treating and examining physicians’ opinions and consequently awarding benefits based on the presumptive weight given to those opinions). Additionally, the Court “must consider whether there are ‘inconsistencies between the claimant’s testimony and the medical evidence in the record.’” Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (quoting Treichler, 775 F.3d at 1105). Here, such inconsistencies exist. See e.g., AR 516 (ALJ describing evidence Plaintiff exaggerated certain symptoms); see also Dkts. 9, 16 (failing to raise argument challenging ALJ’s statements about potential symptomatic exaggeration). Thus, the Court declines to remand with directions to award benefits.

1 IV. CONCLUSION 2 For the foregoing reasons, the Court finds the ALJ improperly concluded that Plaintiff was not disabled. Accordingly, this matter is REVERSED and REMANDED to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this order.

6 Dated this 10th day of July, 2024.

A David W. Christel United States Magistrate Judge