Pfitzer v. Commissioner of Social Security

[7] UNITED STATES DISTRICT COURT [8] WESTERN DISTRICT OF WASHINGTON AT TACOMA [9] 10 URSULA P., CASE NO. 2:22-CV-741-DWC 11 Plaintiff, ORDER REVERSING AND 12 v. REMANDING DEFENDANT’S DECISION TO DENY BENEFITS 13 COMMISSIONER OF SOCIAL SECURITY, [14] Defendant. [16] Plaintiff filed this action, pursuant to 42 U.S.C. § 405 (g), for judicial review of [17] Defendant’s denial of Plaintiff’s applications for supplemental security income (“SSI”) and [18] disability insurance benefits (“DIB”). Pursuant to 28 U.S.C. § 636 (c), Federal Rule of Civil [19] Procedure 73 and Local Rule MJR 13, the parties have consented to have this matter heard by [20] the undersigned Magistrate Judge. See Dkt. 2. [21] After considering the record, the Court concludes the Administrative Law Judge erred in [22] evaluating the opinion of Drs. Andersen, Yun, and Knapp. Had the ALJ properly considered [23] these opinions, the residual functional capacity assessment may have included different [24] 1 limitation. The ALJ’s error is therefore harmful, and this matter is reversed and remanded, 2 pursuant to sentence four of 42 U.S.C. § 405 (g) to the Acting Commissioner of Social Security 3 (“Commissioner”) for further proceedings consistent with this Order. 4 FACTUAL AND PROCEDURAL HISTORY 5 On April 25, 2018, and May 2, 2018, Plaintiff filed applications for SSI and DIB 6 respectively, alleging disability as of October 4 and 5, 2004, which she later amended to July 26, 7 2016. See Dkt. 8, Administrative Record (“AR”) 213, 210, and 779. The application was denied 8 upon initial administrative review and on reconsideration. See AR 137-40, 146-8, 143-5. At 9 Plaintiff’s request, Administrative Law Judge (“ALJ”) C. Howard Prinsloo held a hearing on 10 June 18, 2019. See AR 38-70. On July 17, 2019, the ALJ issued a decision finding denying 11 benefits. See AR. 17-31. On May 26, 2020, the Appeal’s Council denied Plaintiff’s request for 12 review making the ALJ’s decision the final decision of the Commissioner. See AR 1-6; 20 13 C.F.R. § 404.981 , § 416.1481. 14 Plaintiff filed a complaint in this Court. On April 14, 2021, the United States District 15 Court, Western District of Washington reversed the ALJ’s decision and remanded the matter for 16 further administrative proceedings. AR. 870-880. This Court concluded that the ALJ erred in 17 evaluating the opinions of Drs. Andersen, Yun, and Knapp because the ALJ’s assessments of the 18 opinions were not supported by substantial evidence. AR. 873-880. This Court also concluded 19 the ALJ shall reconsider the opinion evidence as it relates to Plaintiff’s testimony. AR. 880. 20 On remand, the ALJ held a hearing on February 15, 2022. AR. 803-828. On March 23, 21 2022, the ALJ issued a second decision denying benefits. AR. 779-96. The ALJ found severe 22 impairments of bipolar disorder, anxiety disorder and personality disorder but found Plaintiff 23 does not have an impairment or combination of impairments that meet or equal the severity of [24] 1 listings 12.04, 12.06, and 12.08. See AR 782-5. Next, the ALJ found Plaintiff had the residual 2 functional capacity (“RFC”) to perform a full range of work at all exertional levels except 3 Plaintiff is limited to work with superficial and occasional contact with supervisors, co-workers, 4 and the public and work limited to simple and routine tasks in a predictable workplace 5 environment with well-defined workplace expectations. See AR 785. The ALJ found Plaintiff is 6 unable to perform her past relevant work but, in reliance on the vocational expert’s testimony, 7 the ALJ concluded a significant number of jobs exist in the national economy that Plaintiff can 8 perform, considering her age, education, work experience, and residual functional capacity. See 9 794-5. As a result, the ALJ concluded Plaintiff has not been disabled from July 26, 2016, through 10 March 23, 2022, the date of the ALJ’s decision. See AR 796. 11 On June 2, 2022, Plaintiff filed a complaint in this Court seeking judicial review of ALJ 12 Prinsloo’s February 15, 2022 decision. Dkt. 4. In Plaintiff’s Opening Brief, Plaintiff maintains 13 the ALJ erred by: (1) failing to provide legally sufficient reasons for rejecting the opinions of the 14 examining physicians who assessed limitations from her mental impairments; and (2) failing to 15 provide legally sufficient reasons for rejecting Plaintiff’s complaints regarding the limiting 16 effects of her mental impairments. Dkt. 13 at 1. Plaintiff only requests review of the ALJ’s 17 assessment of her limitations related to her mental impairments. Dkt. 13 at 4. 18 STANDARD OF REVIEW 19 Pursuant to 42 U.S.C. § 405 (g), this Court may set aside the Commissioner’s denial of 20 social security benefits if the ALJ’s findings are based on legal error or not supported by 21 substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211 , 1214 n.1 (9th 22 Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). Substantial evidence is 23 “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” [24] 1 Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (citations omitted). “We review only the 2 reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a 3 ground upon which he did not rely.” Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014) 4 (citation omitted). 5 DISCUSSION 6 I. Whether the ALJ properly evaluated the medical opinion evidence. 7 Plaintiff argues that the ALJ failed to provide legally sufficient reasons for rejecting the 8 opinions of every examining physician who assessed limitations from her mental impairments, 9 including Drs. Andersen, Yun, and Knapp. Specifically, Plaintiff argues that: 1) the ALJ relied 10 on reasons that the Court previously considered and rejected; 2) the ALJ’s additional reasons are 11 not legally sufficient and not supported by substantial evidence; and 3) every examining 12 physician’s opinion is consistent with each other, unlike the state contracted DDS opinions relied 13 on by the ALJ. Dkt. 13 at 4. The Commissioner responds that “[u]nlike the prior ALJ decision, 14 this time the ALJ explicitly discussed observations of these medical sources and found they were 15 not supportive of [the] limitations given the record as a whole.” Dkt. 14 at 12. 16 The regulations regarding the evaluation of medical opinion evidence have been 17 amended for claims filed on or after March 27, 2017. Revisions to Rules Regarding the 18 Evaluation of Medical Evidence (“Revisions to Rules”), 2017 WL 168819 , 82 Fed. Reg. 5844 , at 19 *5867-68; *5878-79 (Jan. 18, 2017). Since Plaintiff filed her claim after that date, the new 20 regulations apply. See 20 C.F.R. §§ 404 .1520c, 416.920c. Under the revised regulations, ALJs 21 “will not defer or give any specific evidentiary weight, including controlling weight, to any 22 medical opinion(s) or prior administrative medical finding(s). . . .” 20 C.F.R. §§ 404 .1520c(a), 23 416.920c(a). Instead, ALJ’s must consider every medical opinion or prior administrative medical [24] 1 findings in the record and evaluate each opinion’s persuasiveness using the factors listed. See 20 2 C.F.R. § 404 .1520c(a), 416.920c(a). The two most important factors are the opinion’s 3 “supportability” and “consistency.” Id. ALJs must explain “how [they] considered the 4 supportability and consistency factors for a medical source’s medical opinions or prior 5 administrative medical findings in [their] . . . decision.” 20 C.F.R. §§ 20 C.F.R. 404.1520c(b)(2), 6 416.920c(b)(2). “Supportability means the extent to which a medical source supports the medical 7 opinion by explaining the ‘relevant . . . objective medical evidence.’” Woods v. Kijakazi, 32 8 F.4th 785 , 791-2 (9th Cir. 2022) (citing 20 C.F.R. § 404 .1520c(c)(1)); see also § 416.920c(c)(1). 9 “Consistency means the extent to which a medical opinion is ‘consistent . . . with the evidence 10 from other medical sources and nonmedical sources in the claim.’” Woods, 32 F.4th at 792 11 (citing 20 C.F.R. § 404 .1520c(c)(2)); see also § 416.920c(c)(2). 12 A. Dr. Andersen 13 Psychologist Dr. Andersen examined Plaintiff on September 17, 2015. See AR 343-51. 14 Dr. Andersen’s evaluation consisted of a clinical interview, a review of the medical record, and a 15 mental status examination. Id. Based on this evaluation, Dr. Andersen diagnosed Plaintiff with 16 attention deficit hyperactivity disorder (“ADHD”), unspecified bipolar and anxiety disorders, 17 borderline personality disorder, and a history of marijuana use. See AR 349. Dr. Andersen 18 opined Plaintiff would be able to understand and remember instructions of moderate complexity, 19 but would have difficulty carrying out tasks, and would have marked difficulties in organizing 20 her time, pacing herself, avoiding distraction, and getting tasks done within the required 21 timeframe, if she were left to work independently. See AR 350. 22 Dr. Andersen added that if Plaintiff were closely supervised, she would likely react 23 angrily to efforts to control or structure her time and would react angrily to even minor [24] 1 frustrations. Id. Dr. Andersen further opined that Plaintiff would have markedly conflicted 2 relationships with others in the workplace due to affective instability and irritability and would 3 have great difficulty working collaboratively with others. Id. Dr. Andersen stated that irritability 4 and impulsivity would impair Plaintiff’s judgment, and that Plaintiff would likely react 5 impulsively when confronted with unforeseen problems. Id. 6 The ALJ found Dr. Andersen’s September 17, 2015 opinion, and the opinions of two 7 other examining psychologists1 from 2014 and 2015, “not persuasive,” reasoning that: 1) the 8 opinions were “generated well prior to the current period at issue”; 2) Plaintiff had substantial 9 gainful activity after these opinions were offered; and 3) the opinions are inconsistent with 10 objective evidence of Plaintiff’s “ability to appropriately engage, converse, behave, and manage 11 herself.” See AR 791. The ALJ recognized that other subsequent consultative examiners from the 12 relevant period also opined that Plaintiff had marked and severe impairments. Id. However, the 13 ALJ also found those opinion unpersuasive because the ALJ “found the psychological opinions 14 of the state agency reviewers . . . to be more consistent with the longitudinal record.” Id. 15 With respect to the ALJ’s reasoning that Dr. Andersen’s opinion is too remote in time, 16 this Court concluded in its prior Order that Dr. Andersen’s opinion, given its consistency with 17 opinions rendered by other mental health examiners during the current period at issue, was 18 “significant, probative evidence that provides valuable, detailed information concerning the 19 extent and nature of Plaintiff’s work-related mental health limitations during the period at issue, [21] 22 1 On May 28, 2014, Dr. Kouzes opined Plaintiff had marked limitations in her ability to: complete a normal workday and workweek without interruptions from psychologically based symptoms; and maintain appropriate behavior in the workplace. See AR 791; see also 432-436. On August 25, 2015, Dr. Widlan opined Plaintiff had [23] marked limitations in her ability to: adapt to changes in a routine work setting; communicate and perform effectively in a work setting; and complete a normal workday and workweek without interruptions from psychologically based 24 symptoms. See AR 791; see also AR 437- 441. 1 and the fact that it was rendered shortly before Plaintiff’s disability onset date cannot serve as a 2 valid reason for discounting it.” See AR 874. Dr. Andersen’s opinion is also consistent with the 3 two other opinions rendered during the same time period. See footnote 1. The ALJ has not 4 provided any new rationale that would convince this Court to come to a different conclusion. 5 With respect to the ALJ’s reasoning that Dr. Andersen’s opinion is unpersuasive because 6 Plaintiff engaged in substantial gainful activity during the period at issue, this Court concluded in 7 its prior Order that this “is consistent with her work history, which indicates that she has 8 difficulty maintaining employment for an extended period . . . and is also consistent with Dr. 9 Andersen’s opinion concerning Plaintiff’s work-related mental limitations.” See AR 876. This 10 Court further concluded that Plaintiff’s “ability to run her own photography business cannot 11 serve as a valid reasoning for discounting Dr. Andersen’s opinion given that it is unclear whether 12 Plaintiff’s business ever generated income.” Id. The ALJ has not provided any new rationale that 13 would convince this Court to come to a different conclusion. 14 Unlike in the ALJ’s previous decision, the ALJ also found Dr. Andersen’s and the two 15 other opinions from that time period unpersuasive because the marked limitations were 16 inconsistent with the treatment record and objective evidence. See AR 791. Specifically, the ALJ 17 found that the marked limitations in Plaintiff’s ability to complete a normal workday, maintain 18 appropriate behavior, adapt, and communicate to be inconsistent with treatment records. Id. In 19 support, the ALJ cited therapy records showing Plaintiff regularly engaged well, offered her 20 thoughts and asked questions during her therapy sessions, presented as engaged and open to 21 conversation, demonstrated appropriate behavior, and communicated effectively. See AR 791. 22 While an inconsistency with the medical record is a valid reason to find an opinion 23 unpersuasive, in this case the ALJ’s citations are selective, ignoring numerous treatment notes [24] 1 that would support Dr. Andersen’s opinion of marked limitations and ignoring supportive 2 evidence in the selected citations. See e.g., AR 450 (cooperative, voiced increase in energy, is 3 being mindful of mania); AR 452 (high anxiety); AR 455 (cooperative, but impaired insight, 4 anxious, agitated); AR 461 (cooperative, depressed, with anxiety); AR 738 (cooperative but 5 guarded/suspicious and with impaired judgement and insight); AR 739 (mood depressed, 6 anxious, angry, irritated); AR 747 (cooperative behavior, but with some pressured speech, some 7 hypomania, and anxious mood); AR 748 (calm behavior, but with anxious/irritated mood, 8 restricted affect range to anger/irritation which is congruent w/ ct’s history of anxiety); AR 758 9 (engaged, but irritated); Id. (reserved and ornery [sic]); AR 759 (engaged and open, but also 10 presented some frustration); AR 1039 (cooperative, with limited eye contact, fiddling with nails 11 during session, irritable, fair judgment). The fact that Plaintiff would cooperate and engage in her 12 mental health treatment does not necessarily relate to Dr. Andersen’s opinion that Plaintiff’s 13 affective instability and irritability would markedly affect her interaction with coworkers and 14 supervisors, would impair her judgment, and would likely react impulsively when confronted 15 with unforeseen problems. 16 While the Commissioner notes that an ALJ’s conclusion must be upheld “if evidence is 17 susceptible to more than one rational interpretation,” Dkt. 14 at 13 (citing Woods, 32 F.4th at 18 788), a Court “cannot affirm . . . ‘simply by isolating a specific quantum of supporting evidence,’ 19 but ‘must consider the record as a whole, weighing both evidence that supports and evidence that 20 detracts from the [Commissioner’s] conclusion.’” Attmore v. Colvin, 827 F.3d 872, 875 (9th Cir. 21 2016) (citing Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)). The Ninth Circuit has 22 instructed that ALJs, in composing disability determination decisions, “use these two terms of 23 art— ‘consistent’ and ‘supported’ —with precision.” Woods, 32 F.4th at 793 n. 4. Thus, under [24] 1 the new regulations an ALJ cannot reject medical opinions or prior administrative medical 2 findings as inconsistent or unsupported without providing an explanation supported by 3 substantial evidence. See Woods, 32 F.4th at 792. 4 Therefore, the Court concludes the ALJ erred in evaluating the opinion evidence. See 5 Holohan v. Massanari, 246 F.3d 1195, 1207 (9th Cir. 2001) (concluding the ALJ erred by 6 selectively picking some entries in the medical record while ignoring others); Ghanim v. Colvin, [7] 763 F.3d 1154, 1164 (9th Cir. 2014) (stating an ALJ is not permitted to “cherry-pick” 8 physician’s observations without considering context); Garrison v. Colvin, 759 F.3d 995 , 1018 n. 9 23 (9th Cir. 2014) (citation omitted) (stating “[t]he ALJ was not permitted to ‘cherry pick’ from 10 those mixed results to support a denial of benefits. . . . The very nature of bipolar disorder is that 11 people with the disease experience fluctuations in their symptoms, so any single notation that a 12 patient is feeling better or has had a ‘good day’ does not imply that the condition has been 13 treated.”). 14 The ALJ also found that the medical opinions were inconsistent with her ability to live 15 alone, go out alone, use public transportation, shop in stores, manage her money, and drive. The 16 ALJ’s generalized assertion about Plaintiff’s activities is not sufficient to undermine medical 17 opinions regarding her specific abilities in a work setting. See Lindsay K. v. Comm'r of Soc. Sec., 18 No. C21-05033-MAT, 2022 WL 407387 , at *10 (W.D. Wash. Feb. 10, 2022) (activities of daily 19 living including managing self-care, cooking, performing light household chores, yardwork, 20 driving, shopping, and running errands does not undermine Plaintiff’s allegations of debilitating 21 symptoms from anxiety and mental impairments and these activities are not clearly transferable 22 to a work setting); but see Ahearn v. Saul, 988 F.3d 1111, 1117 (9th Cir. 2021) (concluding the 23 ability to play video games and watch television for sustained periods, to use a library computer, [24] 1 to use public transportation, to shop at stores, to perform personal care, to prepare meals, to 2 socialize with friends, and to perform household chores provide substantial evidence to discredit 3 Plaintiff’s testimony); McClain v. Halter, 10 F. App’x 433, 437 (9th Cir. 2001) (citation omitted) 4 (evidence that Plaintiff is able to socialize or perform some household chores is not 5 determinative of disability); Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (citations 6 omitted) (Courts “have recognized that disability claimants should not be penalized for 7 attempting to lead normal lives in the face of their limitations”); Orn v. Astrue, 495 F.3d 625 , 8 639 (9th Cir. 2007) (quoting Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005)) (stating the 9 ALJ “must make ‘specific findings relating to the daily activities’ and their transferability to 10 conclude that a claimant’s daily activities warrant an adverse credibility determination.”). 11 Therefore, the Court concludes the ALJ's finding of an inconsistency between Dr. 12 Andersen’s medical opinion and the treatment record and objective evidence is not supported by 13 substantial evidence. 14 B. Dr. Yun 15 Dr. Jenna Yun, Ph.D., examined Plaintiff for the Washington Department of Social and 16 Health Services (“DSHS”) on July 26, 2016. See AR 560-65. Dr. Yun’s evaluation consisted of a 17 clinical interview, a mental status examination, and a review of an August 25, 2015 opinion from 18 David Widlan, (Ph.D.). See AR 560. Based on this examination, Dr. Yun opined Plaintiff would 19 have a range of moderate, marked, and severe2 work-related mental limitations, and Plaintiff’s 20 overall degree of limitation would be severe. See AR 563. Dr. Yun assessed Plaintiff would have [22] 2 A moderate limitation means “significant limits on the ability to perform one or more basic work [23] activity.” See AR 562. A marked limitation means “a very significant limitation on the ability to perform one or more basic work activity.” Id. A severe limitation means “an inability to perform the particular activity in regular 24 competitive employment.” Id. 1 severe limitations in completing a normal workday and workweek without interruptions from 2 psychologically based symptoms; maintaining appropriate behavior in the workplace; and 3 communicating and performing effectively in the work setting. Id. 4 The ALJ found that Dr. Yun’s opinion was “not persuasive,” reasoning that: 1) it was 5 inconsistent with the longitudinal record showing Plaintiff presented as engaged and open to 6 conversation with appropriate behavior and ability to communicate; 2) it was not supported by 7 Dr. Yun’s own examination findings; 3) Dr. Yun only reviewed one 2015 evaluation before 8 assessing Plaintiff’s opinion; 4) it was inconsistent with her ability to live alone, go out alone, 9 use public transportation, shop in stores, manage her money, and drive; and 5) it was inconsistent 10 with the state agency opinions, which the ALJ found more persuasive. AR. 788-9. 11 With respect to the ALJ’s first reason, an inconsistency with the medical record can serve 12 as a valid reason to find an opinion unpersuasive. See 20 C.F.R. §§ 404 .1520c(c)2, 13 416.920c(c)2. However, the ALJ selectively cited many of the same records as cited for finding 14 Dr. Andersen’s opinion inconsistent, which the Court concluded is not substantial evidence. See 15 Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014) (stating that an ALJ is not permitted to 16 “cherry-pick” physician’s observations without considering context). 17 With respect to the ALJ’s reasoning that Dr. Yun’s opinion is not supported by his own 18 exam finding, the Court addressed this issue in its previous Order. See AR 877-8. The Court 19 concluded, while the marked and severe limitation are not consistent with the results of her 20 mental status examination, Dr. Yun’s opinion is consistent with her other clinical findings that 21 Plaintiff would have a range of “severe” mental health symptoms including psychomotor 22 agitation, inflated self-esteem or grandiosity, racing thoughts, risky behavior, 23 anger/aggression/irritability, affective instability, a tendency to minimize problems, a low [24] 1 tolerance for others, and negative relationships. See AR 878. The ALJ now cites records 2 describing Plaintiff as having no racing thoughts, grandiosity or excessive activity, and that her 3 mood is well managed. However, Dr. Yun describes these symptoms as cyclic. AR 562. “Cycles 4 of improvement and debilitating symptoms are a common occurrence, and in such 5 circumstances[,] it is error for an ALJ to pick out a few isolated instances of improvement over a 6 period of months or years and to treat them as a basis for concluding a claimant is capable of 7 working.” Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014). The ALJ also failed to 8 address Dr. Yun’s other clinical findings for consistency, including those described as pervasive, 9 rather than cyclic. See AR 562. As the Court noted with respect to Dr. Andersen, the ALJ’s 10 citations were selective, and ignored records that are consistent with and support Dr. Yun’s 11 opinion of Plaintiff’s chronic anger, aggression, irritability, and mood and affective instability. 12 With respect to the ALJ’s finding that Dr. Yun only reviewed the opinion of Dr. Widlan 13 before assessing Plaintiff’s opinion, the Court already addressed this finding in its previous 14 Order. See AR 878. The Court noted that, while Dr. Yun reviewed Dr. Widlan’s opinion from 15 2015 as part of her evaluation, “there is no evidence that she relied primarily on Dr. Widlan’s 16 opinion” and his opinion, which “was rendered less than a year before Plaintiff’s amended onset 17 date, can serve as significant, probative evidence concerning Plaintiff’s functional capacity 18 during the period at issue.” See AR 878. Dr. Yun’s evaluation was also supported by a clinical 19 interview and clinical findings based on mental status examination. 20 With respect to the ALJ’s finding that Dr. Yun’s opinion was inconsistent with her ability 21 to live alone, go out alone, use public transportation, shop in stores, manage her money, and 22 drive, this Court already addressed this issue with respect to Dr. Andersen’s opinion. The ALJ’s 23 generalized assertion about Plaintiff’s activities is not sufficient to undermine medical opinions [24] 1 regarding her specific abilities in a work setting. See Lindsay K., 2022 WL 407387 , at *10; Orn, [2] 495 F.3d at 639 (citation omitted) (ALJ must make specific findings relating to the daily 3 activities and their transferability to warrant an adverse credibility determination.)”. 4 Next, the ALJ reasoned that Dr. Yun’s opinion was unpersuasive because it was 5 inconsistent with the state agency opinions, which the ALJ found more persuasive. Consistency 6 with other medical opinions can serve as a valid reason to find an opinion unpersuasive. See 20 7 C.F.R. §§ 404 .1520c(c)2, 416.920c(c)2. Here, the ALJ found the opinions of state non8 examining consultants, Michael Regrets, Ph.D. and Matthew Comrie, Psy.D., at the initial 9 administrative review and on reconsideration “consistent with and supported by the longitudinal 10 evidence of record including the large amount of evidence received at the hearing level that 11 included evidence generated may years prior.” See AR 788. Both physicians recognized Plaintiff 12 has anger problems, is irritable, and is quick to anger. See AR 137-40, 146-8, 143-5. They both 13 opined that Plaintiff’s “contact with the public, coworkers and supervisors should be limited to 14 superficial and occasional” and “she would function best in a predictable and simple routine 15 environment with well-defined expectation.” Id. They further opined that “her cognitive function 16 is overall intact” and “she remains able to engage in both simple and more complex tasks within 17 an average work week.” Id. 18 The specific reasons the ALJ gave for finding these opinions persuasive is Plaintiff has 19 been able to perform work at substantial gainful activity levels during the relevant period and 20 that these physicians are experts in SSA-program physical disability evaluation. See AR 788. 21 However, the ALJ did not determination whether Plaintiff’s short-term work attempts during that 22 period could be considered “unsuccessful work attempts,” which is consistent with her work 23 history and supports that she has difficulty maintaining employment due to a combination of her [24] 1 mental impairment. See AR 221-225. This is consistent with Dr. Andersen’s and Dr. Yun’s 2 opinion with respect to her mental impairments. See Lingenfelter v. Astrue, 504 F.3d 1028 , 1038 3 (9th Cir. 2007) (“It does not follow from the fact that a claimant tried to work for a short period 4 of time and, because of his impairments, failed, that he did not then experience pain and 5 limitations severe enough to preclude him from maintaining substantial gainful employment.”). 6 “In fact, such evidence in some circumstances may support allegations of disabling symptoms.” [7] Id. (citing Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989)). 8 In addition, the ALJ failed to consider or discuss the consistency between Dr. Yun’s 9 opinion and the opinions of all the other examining physicians, including the three opinions 10 rendered prior to the relevant period (Dr. Andersen, Dr. Widlan, and Dr. Kouzes) and the two 11 opinions rendered by Dr. Knapp during the relevant period. 12 Therefore, the Court concludes that the ALJ’s finding that Dr. Yun’s opinion was “not 13 persuasive,” is not supported by substantial evidence. 14 C. Dr. Knapp 15 Dr. Geordie Knapp evaluated Plaintiff on February 5, 2018. See AR 367-71; 566-581. Dr. 16 Knapp’s February 5, 2018 evaluation consisted of a clinical interview, a mental status 17 examination, a review of the medical record, and psychological testing. Based on this evaluation, 18 Dr. Knapp opined that Plaintiff would have a range of moderate, marked, and severe mental 19 limitations, and that her overall degree of limitation was severe. See AR 368-69, 567-68. Dr. 20 Knapp opined Plaintiff had severe limitations in performing activities within a schedule, 21 maintaining regular attendance, and being punctual within customary tolerances without special 22 supervision; completing a normal workday and workweek without interruptions from [24] 1 psychologically based symptoms; maintaining appropriate behavior in the workplace; and 2 communicating and performing effectively in the work setting. Id. 3 Dr. Knapp’s also evaluated Plaintiff on September 2, 2021. See AR 1157-62. The 4 evaluation was based on a telephonic clinical interview with Plaintiff and a review of his 5 previous evaluation. See AR 1157. Dr. Knapp again found a range of moderate, marked, and 6 severe mental limitations, and opined that her overall limitation was severe. See AR 1159. Dr. 7 Knapp opined Plaintiff had severe limitations in performing activities within a schedule, 8 maintaining regular attendance, and being punctual within customary tolerances without special 9 supervision; completing a normal workday and workweek without interruptions from 10 psychologically based symptoms; and communicating and performing effectively in the work 11 setting. Id. However, Dr. Knapp reduced his assessment to a marked, rather than severe, 12 limitation in maintaining appropriate behavior in the workplace. Compare AR 568 to 1159. 13 The ALJ found that Dr. Knapp’s opinions were “not persuasive,” reasoning that: 1) they 14 were not consistent with the longitudinal showing Plaintiff engaged well, offered her thoughts, 15 and asked questions during therapy sessions; 2) they were not supported by Dr Knapp’s own 16 examination findings; 3) they were based on a one-time examination and did not review evidence 17 outside the 2009, 2014, and 2018 one-time evaluations; 4) they were inconsistent with her ability 18 to live alone, go out alone, use public transportation, shop in stores, manage her money, and 19 drive; 5) they were inconsistent with the state agency opinions, which the ALJ found more 20 persuasive; and 6) Dr. Knapp noted that her physical impairments are a primary impediment to 21 employment. See AR. 790-1. 22 The ALJ found Dr. Knapp’s opinion “not persuasive” for many of the same reasons the 23 ALJ discounted Dr. Yun’s opinion. Therefore, the Court concludes that the ALJ’s findings are [24] 1 not supported by substantial evidence. For the reasons discussed above, the Court concludes that 2 the ALJ’s assessment of Dr. Knapp’s opinions is not supported by substantial evidence. See 3 supra Sections I. A. and B. 4 In summary, the Court concludes that the ALJ erred in assessing the examining 5 physician’s medical opinion evidence. Dr. Andersen’s opinion, with respect to Plaintiff’s mental 6 impairments, is consistent with the opinions of two other physicians rendered during the same 7 period, all of which include marked and severe limitations in Plaintiff’s ability to sustain certain 8 basic work activities over a normal workday and workweek. These opinions are also broadly 9 consistent with the opinions rendered by Dr. Yun and Dr. Knapp during the relevant period, who 10 assessed Plaintiff as having a range of moderate, marked, and severe work-related mental health 11 limitations. The Court further concludes that the ALJ’s reasons for rejecting all the examining 12 physician’s opinion evidence are not supported by substantial evidence. Therefore, reversal is 13 appropriate. 14 II. Whether the ALJ erred in evaluating Plaintiff’s testimony. 15 Plaintiff argues that the ALJ failed to provide clear and convincing reasons for rejecting 16 Plaintiff’s testimony. Dkt. 13 at 18-24. The Court notes that the ALJ rejected Plaintiff’s 17 testimony for many of the same reasons he found the medical opinion evidence inconsistent and 18 unpersuasive. Because the Court found the ALJ’s reasons for rejecting the opinion evidence 19 unsupported by substantial evidence, the ALJ’s reconsideration of this opinion evidence will 20 necessarily impact the ALJ’s assessment of this evidence. Plaintiff will also be able to present 21 new evidence and testimony on remand. Therefore, the ALJ shall also reassess Plaintiff’s 22 subjective complaints on remand. 23 III. Remedy [24] 1 Plaintiff requests that the case be remanded for the award of benefits. Dkt. 13 at 24. In the 2 alternative, Plaintiff requests that the Court reverse and remand the case with instructions for the 3 ALJ to reconsider Plaintiff’s testimony and the opinions from Drs. Andersen, Yun, and Knapp. 4 The Commissioner responds that, if the Court finds that the ALJ committed harmful 5 error, the appropriate remedy is for the Court to remand the case for further proceedings because 6 there are serious doubts Plaintiff is disabled. Dkt. 14 at 14. Specifically, the Commissioner 7 responds that the regulations do not permit a finding of disability while a claimant is engaging in 8 substantial gainful activity and Plaintiff engaged in substantial gainful work for over 6 months 9 during the relevant period. Id. at 15. The Commissioner further responds that there “is serious 10 doubt her impairments alone are disabling” because the record contains references “to the 11 exacerbating effects of substance use on Plaintiff’s mental health symptoms and functioning.” Id. 12 “‘The decision whether to remand a case for additional evidence, or simply to award 13 benefits[,] is within the discretion of the court.’” Trevizo v. Berryhill, 871 F.3d 664, 682 (9th Cir. 14 2017) (quoting Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987)). If an ALJ makes an 15 error and the record is uncertain and ambiguous, the Court should remand to the agency for 16 further proceedings. Leon v. Berryhill, 880 F.3d 1041, 1045 (9th Cir. 2017). Likewise, if the 17 Court concludes that additional proceedings can remedy the ALJ's errors, it should remand the 18 case for further consideration. Revels v. Berryhill, 874 F.3d 648, 668 (9th Cir. 2017). 19 The Ninth Circuit has developed a three-step analysis for determining when to remand 20 for a direct award of benefits. Such remand is generally proper only where: 21 “(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 22 reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ 23 would be required to find the claimant disabled on remand.” [24] 1 Trevizo, 871 F.3d at 682 -83 (quoting Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2 2014)). The Ninth Circuit emphasized in Leon v. Berryhill that even when each element is 3 satisfied, the District Court still has discretion to remand for further proceedings or for award of 4 benefits. 80 F.3d 1041, 1045 (9th Cir. 2017). For example, the Court has the flexibility to remand 5 a case for further proceedings, even where all the elements are satisfied, when the record as a 6 whole creates “serious doubt that a claimant is, in fact, disabled.” Garrison v. Colvin, 759 F.3d 7 995, 1021 (9th Cir. 2014). 8 Here, this matter must be reversed because the ALJ erred in evaluating the opinions of 9 Drs. Andersen, Yun, and Knapp and in evaluating the testimonial and other evidence with 10 respect to Plaintiff’s subjective complaints. However, there are other outstanding issues which 11 must be decided which preclude the Court from awarding benefits. 12 The ALJ found Plaintiff engaged in substantial gainful activity (“SGA”) between October 13 1, 2016, through December 31, 2016, and April 1, 2017, through June 30, 2017, because Plaintiff 14 earned more than $1,300 per month and $1,170 for those quarters, respectively. See AR 782 15 (citing AR 227-9). Plaintiff contends that her work attempts are considered “unsuccessful work 16 attempts” under the regulations because her work activity at or over the SGA was limited to three 17 months. Dkt. 15 at 1-2, 11-12; Dkt. 13 at 3-4. Plaintiff states that her inability to maintain 18 employment during these periods was due to her mental impairments and is consistent with her 19 employment history showing she worked for 28 different employers between 2001 and 2017. 20 Dkt. 13 at 3-4. However, the ALJ neither explained nor discussed whether these periods met the 21 criteria for “unsuccessful work attempts” under the regulations.3 See AR 72. Therefore, this is an [23] 3 The ALJ limited the decision to “the period(s) the claimant did not engage in substantial gainful activity” 24 but did not identify that period. See AR 782. 1 issue which must be addressed on remand.4 2 With respect to the Commissioner’s argument that Plaintiff’s alcohol and marijuana use 3 may be contributing factors to her mental health symptoms and functioning, because the ALJ did 4 not find the Plaintiff disabled the ALJ did not address whether her alcohol and marijuana use 5 were material to her disability. See 20 C.F.R. §§ 404.1535 , 416.935. As a result, an award of 6 benefits is not appropriate. 7 Therefore, the ALJ’s decision is reversed and remanded for further administrative 8 proceedings with a new Administrative Law Judge in accordance with this Order. On remand, 9 the ALJ shall also address whether Plaintiff’s work between October 1, 2016, through December 10 31, 2016, and April 1, 2017, through June 30, 2017, meets the criteria for “unsuccessful work 11 attempts.” 12 CONCLUSION 13 Based on the foregoing reasons, the Court hereby finds the ALJ improperly concluded 14 Plaintiff was not disabled. Accordingly, Defendant’s decision to deny benefits is reversed and 15 this matter is remanded for further administrative hearing with a new Administrative Law Judge 16 in accordance with the findings contained herein. 17 Dated this 30th day of January, 2023. [18] A [19] David W. Christel United States Magistrate Judge [23] 4 Beginning at Step One, the ALJ questioned the reliability of Plaintiff’s other statements based on her 24 ability to work SGA. See AR 782.