Kelley v. Commissioner of Social Security

[5] UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA [7] JONATHAN P K., [8] Plaintiff, Case No. C23-5062 RSM [9] v. ORDER REVERSING DENIAL OF 10 BENEFITS AND REMANDING COMMISSIONER OF SOCIAL SECURITY, FOR FURTHER PROCEEDINGS [11] Defendant. [12] 13 Plaintiff seeks review of the denial of his application for Disability Insurance Benefits. 14 Plaintiff contends the Administrative Law Judge (ALJ) erred by improperly evaluating the 15 medical opinions of Dr. Dyck and Dr. Nelson, improperly assessing his residual functional 16 capacity (RFC), and rejecting his symptom testimony.1 Dkt. 16. As discussed below, the Court 17 REVERSES the Commissioner’s final decision and REMANDS the matter for further 18 administrative proceedings under sentence four of 42 U.S.C. § 405 (g). 19 BACKGROUND 20 Plaintiff is 54 years old and has at least a high school education. Admin. Record (AR) [22] 1 Plaintiff filed his complaint in January 2023. Dkt. 1. On May 1, 2023, the Court amended the Scheduling Order for this case and directed Plaintiff to file the Opening Brief no later than May 27, 2023. Dkt. 9. Plaintiff instead filed a Motion for Summary Judgment on May 24, 2023. Dkt. 10. The Court strikes Plaintiff’s Motion for 23 Summary Judgment and deems it as constituting Plaintiff’s Opening Brief. ORDER REVERSING DENIAL OF 1 27. In April 2020, Plaintiff applied for benefits, alleging disability as of October 30, 2018. AR 2 85–86, 101. Plaintiff’s application was denied initially and on reconsideration. AR 97, 120. 3 After the ALJ conducted a hearing in August 2021, the ALJ issued a decision finding Plaintiff 4 not disabled through the date of the decision. AR 13–83. 5 DISCUSSION 6 The Court may reverse the ALJ’s decision only if it is legally erroneous or not supported 7 by substantial evidence of record. Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020). The Court 8 must examine the record but cannot reweigh the evidence or substitute its judgment for the 9 ALJ’s. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). When evidence is susceptible to 10 more than one interpretation, the Court must uphold the ALJ’s interpretation if rational. Ford, [11] 950 F.3d at 1154 . Also, the Court “may not reverse an ALJ’s decision on account of an error 12 that is harmless.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). 13 1. Medical Opinion Evidence 14 ALJs must consider every medical opinion in the record and evaluate each opinion’s 15 persuasiveness, with the two most important factors being “supportability” and “consistency.” 16 Woods v. Kijakazi, 32 F.4th 785, 791 (9th Cir. 2022); 20 C.F.R. § 404 .1520c(a). Supportability 17 concerns how a medical source supports a medical opinion with relevant evidence, while 18 consistency concerns how a medical opinion is consistent with other evidence from medical and 19 nonmedical sources. See id.; 20 C.F.R. §§ 404 .1520c(c)(1), (c)(2). Under the new regulations, 20 “an ALJ cannot reject an examining or treating doctor’s opinion as unsupported or inconsistent 21 without providing an explanation supported by substantial evidence.” Woods, 32 F.4th at 792 . 22 a. Dr. Dyck 23 In this case, the ALJ found the medical opinion of Dr. Dyck persuasive. AR 27. Plaintiff ORDER REVERSING DENIAL OF 1 contends the ALJ erred in doing so by failing to explain the opinion’s supportability. Dkt. 10-1 2 at 5–6. In finding Dr. Dyck’s opinion persuasive, the ALJ explained it was “generally consistent 3 with the record as a whole and with [Plaintiff’s] demonstrated functioning.” AR 27. The ALJ 4 also explained Dr. Dyck’s proposed marked limitations are addressed in the RFC assessment, 5 and that greater restrictions than those included in the RFC “are not supported by the evidence.” [6] Id. Plaintiff argues that although the ALJ discussed how Dr. Dyck’s opinion is consistent with 7 the record, the ALJ erred because she never addressed the medical opinion’s supportability.2 8 Dkt. 10-1 at 5. 9 Plaintiff’s argument lacks merit and seems to be based on the assumption that an 10 evaluation of a medical opinion is proper only when the ALJ makes both supportability and 11 consistency findings. However, this is not the case. See Woods, 32 F.4th at 793 n.4 (affirming 12 the ALJ’s rejection of a medical opinion based on its inconsistency with the record though it was 13 supported with relevant objective medical evidence and supporting explanations). Plaintiff also 14 takes issue with the ALJ’s use of the term “supported” in evaluating Dr. Dyck’s opinion because 15 the ALJ “never addressed how Dr. Dyck’s opinion was supported by his examination or his 16 discussion of the documents he reviewed.” Dkt. 10-1 at 5; AR 27. The Court does not find the 17 ALJ’s use of the term “supported” enough to show the ALJ committed error. See Woods, 32 18 F.4th at 793 n.4 (finding no error with the ALJ’s use of the term “not supported by” although the 19 ALJ discussed how an opinion was inconsistent with the record). The Court instead construes 20 this as the ALJ making a consistency finding, since the ALJ proceeded to explain how consistent [22] 2 Plaintiff did not object to the merits of the ALJ’s consistency finding in his Opening Brief, therefore the Court does not address whether this portion of the ALJ’s evaluation is supported by substantial evidence. Carmickle v. Comm’r 23 SSA, 533 F.3d 1155 , 1161 n.2 (9th Cir. 2008) (declining to address an ALJ’s finding because the plaintiff “failed to argue th[e] issue with any specificity in his briefing”). ORDER REVERSING DENIAL OF 1 the opinion was with other evidence in the record. See AR 27. And as explained, a consistency 2 finding that is supported by substantial evidence is sufficient under the new regulations, and 3 Plaintiff did not challenge the merits of the ALJ’s consistency finding. See Woods, 32 F.4th at 4 793 n.4. Thus, Plaintiff’s argument that the ALJ did not comply with the regulations fails. 5 b. Dr. Dyck and Dr. Nelson 6 Though unclear, Plaintiff also contends the ALJ “misrepresented” the medical opinions 7 of Dr. Dyck and Dr. Nelson by finding that he has “moderate limitations” in the “paragraph B” 8 criteria discussion at step three. Dkt. 10-1 at 7. 9 At step three, the ALJ evaluates the severity of a claimant’s mental impairments by rating 10 his or her level of impairment in the four functional areas under the “paragraph B” criteria. 20 11 C.F.R. § 404.1520 (a)(4)(iii). The four functional areas consist of the following: (1) understand, 12 remember, or apply information; (2) interact with others; (3) concentrate, persist, or maintain 13 pace; and (4) adapt or manage oneself. 20 C.F.R. § 404 .1520a(c)(3). 14 Here, the ALJ found Plaintiff has “moderate” limitations in the area of interacting with 15 others. AR 21. The Court does not find that the ALJ misrepresented either the medical opinions 16 of Dr. Dyck or Dr. Nelson in doing so, as the ALJ’s determination directly mirrors both of their 17 proposed limitations. See AR 108 (Dr. Nelson’s “Moderate” rating in Plaintiff’s ability to 18 interact with others), 116–117 (Dr. Nelson rating Plaintiff’s social interaction limitation as 19 “Moderately limited” or “Not significantly limited”), 588 (“[Plaintiff’s] ability to interact with 20 co-workers and the public is likely moderately impaired.”). Accordingly, the Court rejects 21 Plaintiff’s argument that the ALJ “misrepresented” the physician’s opinions. 22 2. RFC 23 Plaintiff contends the ALJ’s RFC assessment fails to account for the limitations proposed ORDER REVERSING DENIAL OF 1 in Dr. Dyck’s and Dr. Nelson’s medical opinions, both of which the ALJ found persuasive. Dkt. 2 10-1 at 6–8; AR 26–27. 3 Dr. Dyck opined Plaintiff’s “ability to interact with co-workers and the public is 4 moderately impaired” and Plaintiff’s ability to deal with usual stress encountered in the 5 workplace is markedly impaired “if it involves being around other individuals.” AR 588 6 (emphasis added). Dr. Nelson opined Plaintiff is moderately limited in his ability to interact with 7 others. AR 108, 116. He explained in narrative form that Plaintiff is “[not] well suited to work 8 with the public or closely with coworkers.” AR 117. He further opined Plaintiff “is able to 9 interact for brief periods of time on a superficial basis with others in a work setting.” Id. In 10 relevant part, the ALJ found Plaintiff has the RFC to perform light work and though he would 11 “have no contact with the public and have occasional contact with coworkers.” AR 22–23. 12 “[T]he ALJ is responsible for translating and incorporating clinical findings into a 13 succinct RFC.” Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015) (citing 14 Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008)). An ALJ properly assesses a 15 claimant’s RFC if the limitations incorporated are consistent, and not necessarily identical, with 16 the opinion of a physician the ALJ found persuasive. See Turner v. Comm’r of Social Sec. 17 Admin., 613 F.3d 1217, 1222-23 (9th Cir. 2010). 18 The ALJ’s RFC here is consistent with the medical opinions of both Dr. Dyck and Dr. 19 Nelson. Both doctors opined that Plaintiff would be moderately impaired in interacting with 20 others. AR 116–17, 588. By limiting Plaintiff to no contact with the public and occasional 21 contact with coworkers, the ALJ properly addressed their proposed limitations. See Shaibi v. 22 Berryhill, 883 F.3d 1102, 1107 (9th Cir. 2017) (finding “no obvious inconsistency” between a 23 physician’s opinion that a claimant would be “moderately limited” in his interaction with ORDER REVERSING DENIAL OF 1 coworkers and the ALJ’s decision to limit the claimant to work in a “non-public setting, with 2 occasional interaction with coworkers”). 3 To the extent Plaintiff is arguing that the ALJ should have included more restrictions 4 based on Dr. Dyck’s opinion that Plaintiff’s “ability to deal with the usual stress encountered in 5 the workplace is markedly impaired if it involves being around other individuals,” the Court 6 finds the ALJ properly accounted for this as well. AR 27, 588. Given the qualifying “if” in Dr. 7 Dyck’s opinion, the ALJ reasonably presumed Plaintiff would only experience such marked 8 difficulties in the event that there are others around. See AR 588. The ALJ evidently 9 contemplated this portion of Dr. Dyck’s opinion by limiting Plaintiff to little to no interaction 10 with both the public and coworkers. See AR 22–23. Accordingly, the Court finds the ALJ 11 properly accounted for both the medical opinions of Dr. Dyck and Dr. Nelson in the RFC 12 assessment. 13 3. Plaintiff’s Symptom Testimony 14 Plaintiff testified he is unable to work because of pain in his back and issues with his 15 neck. AR 52–60. He explained he experiences numbness from his buttocks to his calf when 16 sitting, numbness in his arm, and back spasms. AR 54, 60. He stated he has taken medications, 17 has had steroid injections for his back, undergone surgeries, and participated in physical therapy. 18 AR 55–60. He explained surgery has resolved the numbness in his arm, but his neck remains 19 painful and he cannot move his head. AR 59. He also stated surgery has helped his back issue 20 but only for a limited amount of time, and he has found medication and physical therapy not 21 completely effective. AR 56–57, 60. He stated he can walk or stand for about 30 to 45 minutes 22 before he has to sit down, and sit for only 30 to 45 minutes. AR 63–64. Plaintiff also testified to 23 having attention deficit disorder (ADD) and issues with concentration. AR 64, 69. ORDER REVERSING DENIAL OF 1 Where, as here, an ALJ determines a claimant has presented objective medical evidence 2 establishing underlying impairments that could cause the symptoms alleged, and there is no 3 affirmative evidence of malingering, the ALJ can only discount the claimant’s testimony as to 4 symptom severity by providing “specific, clear, and convincing” reasons supported by 5 substantial evidence. Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). “The standard 6 isn’t whether our court is convinced, but instead whether the ALJ’s rationale is clear enough that 7 it has the power to convince.” Smartt v. Kijakazi, 53 F.4th 489 , 499 (9th Cir. 2022). 8 In discounting Plaintiff’s testimony regarding his symptoms, the ALJ pointed to 9 “objective findings” and explained they did not provide “strong support for [Plaintiff’s] 10 allegations of disabling symptoms and limitations.” AR 24. The ALJ also cited treatment notes 11 showing Plaintiff’s improvements. AR 24–25. Both are valid reasons to reject a claimant’s 12 testimony. Smartt v. Kijakazi, 53 F.4th 489 , 498 (9th Cir. 2022) (“When objective medical 13 evidence in the record is inconsistent with the claimant’s subjective testimony, the ALJ may 14 indeed weigh it as undercutting such testimony.”); Warre ex rel. E.T. IV v. Comm’r of Soc. Sec. 15 Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (holding that “[i]mpairments that can be controlled 16 effectively with medication are not disabling for the purpose of determining eligibility for [social 17 security disability] benefits”). However, the Court cannot say the entirety of the ALJ’s rationale 18 is supported by substantial evidence. 19 The ALJ reasonably rejected Plaintiff’s testimony about his mental health symptoms. 20 AR 25–26. The evidence the ALJ relied on shows Plaintiff continuously had normal mental 21 status examinations, with findings of normal affect and mood, intact memory, and no decreased 22 attention. AR 388, 390, 456, 485, 492, 498, 505, 576, 595, 609, 617, 620, 630, 633, 640, 641, 23 643, 678–79, 685, 754, 762, 821–22, 832, 841, 850, 855, 859, 864. The ALJ also reasonably ORDER REVERSING DENIAL OF 1 rejected Plaintiff’s testimony regarding his neck, as the evidence the ALJ relied on show these 2 symptoms improved from treatment. AR421–22 (“The patient appears motivated and is able to 3 perform exercises correctly with no change in pain. The patient’s progress towards goals is good 4 and his tolerance to treatment is good.”), 465 (“Patient states his neck is doing good. Patient feels 5 his [range of motion] is good, had a kink in his neck that hurt for a few weeks but feeling better 6 now.”), 605 (“He has seen some improvement in his neck pain since his last visit after stretching 7 and popping his neck.”), 828 (“He states his pain in his neck has been mildly improved.”). 8 Normal mental status examinations and reports of improvement undermine statements about 9 Plaintiff’s ADD, concentration difficulties, and neck pain, therefore the ALJ reasonably rejected 10 this portion of Plaintiff’s testimony. 11 However, the ALJ erred in rejecting Plaintiff’s testimony about his back pain, as the 12 evidence the ALJ cited are neither inconsistent with Plaintiff’s statements nor do they 13 convincingly show his symptoms improved. The record shows that after Plaintiff underwent 14 surgeries for his back and spine, he continued to have tailbone pain, even with physical therapy 15 and medication. AR 381 (continued reports of shoulder pain and tailbone pain from May 2019 16 to August 2019), 441–53 (Plaintiff being discharged in June 2019 after six sessions in physical 17 therapy for tailbone pain because Plaintiff had plateaued and “had no progress or change in 18 condition.”), 609, 832. The ALJ pointed out Plaintiff’s gait was normal, he was able to walk on 19 his toes, and had almost full strength in his lower extremities, but his lumbar range of motion 20 remained limited. AR 605, 832, 873. The records also show Plaintiff was recommended to 21 undergo a trial treatment because his previous treatments were ineffective. AR 610, 832. 22 Plaintiff did report some improvement in his arm pain, but this particular improvement was 23 testified to by Plaintiff during the hearing and thus not contradictory. AR 59, 462, 465. ORDER REVERSING DENIAL OF 1 Overall, the ALJ appropriately rejected some, but not all, of Plaintiff’s testimony. Based 2 on the evidence cited by the ALJ, it was reasonable to reject Plaintiff’s statements regarding the 3 severity of his mental health symptoms and neck pain, but the same cannot be said about 4 Plaintiff’s statements regarding his back pain. Accordingly, the Court finds the ALJ partially 5 erred. 6 4. Scope of Remedy 7 Plaintiff argues the Court remand this matter for an award of benefits, or alternatively, for 8 a new hearing. Dkt. 10-1 at 13. Remand for an award of benefits “is a rare and prophylactic 9 exception to the well-established ordinary remand rule.” Leon v. Berryhill, 880 F.3d 1041 , 1044 10 (9th Cir. 2017). The Ninth Circuit has established a three-step framework for deciding whether a 11 case may be remanded for an award of benefits. Id. at 1045 . First, the Court must determine 12 whether the ALJ has failed to provide legally sufficient reasons for rejecting evidence. Id. 13 (citing Garrison, 759 F.3d at 1020). Second, the Court must determine “whether the record has 14 been fully developed, whether there are outstanding issues that must be resolved before a 15 determination of disability can be made, and whether further administrative proceedings would 16 be useful.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1101 (9th Cir. 2014) 17 (internal citations and quotation marks omitted). If the first two steps are satisfied, the Court 18 must determine whether, “if the improperly discredited evidence were credited as true, the ALJ 19 would be required to find the claimant disabled on remand.” Garrison, 759 F.3d at 1020. “Even 20 if [the Court] reach[es] the third step and credits [the improperly rejected evidence] as true, it is 21 within the court’s discretion either to make a direct award of benefits or to remand for further 22 proceedings.” Leon, 880 F.3d at 1045 (citing Treichler, 773 F.3d at 1101). 23 Only the first step is met here, as the Court has found the ALJ erred in the evaluation of ORDER REVERSING DENIAL OF 1 Plaintiff’s symptom testimony. Such an error necessarily affects Plaintiff’s RFC. See Valentine 2 v. Comm’r of Social Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009) (“an RFC that fails to take 3 into account a claimant’s limitations is defective”). The assessment of Plaintiff’s RFC is within 4 the purview of the ALJ, therefore the Court is precluded from moving to the third step of the 5 credit-as-true framework. Dominguez v. Colvin, 808 F.3d 403, 409 (9th Cir. 2015) (“[T]he 6 district court must ‘assess whether there are outstanding issues requiring resolution before 7 considering whether to hold that [the rejected evidence] is credible as a matter of law.’”) 8 (quoting Treichler, 775 F.3d at 1105 ). Accordingly, the Court finds remanding for further 9 proceedings is the more appropriate remedy. 10 On remand, the ALJ shall reevaluate Plaintiff’s testimony regarding his back pain, and 11 reassess Plaintiff’s RFC and all relevant steps of the disability evaluation process. The ALJ shall 12 conduct all further proceedings necessary to reevaluate the disability determination in light of 13 this opinion. 14 CONCLUSION 15 For the foregoing reasons, the Commissioner’s final decision is REVERSED and this 16 case is REMANDED for further administrative proceedings under sentence four of 42 U.S.C. § 17 405(g). 18 DATED this 7th day of September, 2023. [20] A [21] RICARDO S. MARTINEZ 22 UNITED STATES DISTRICT JUDGE [23] ORDER REVERSING DENIAL OF