Brandee Mcclure v. Andrew Saul

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA — 10 — 11 BRANDEE M.,1 Case No. 5:20-cv-01885-AFM 12 Plaintiff, MEMORANDUM OPINION AND 13 v. ORDER REVERSING AND 14 REMANDING DECISION OF ANDREW SAUL, Commissioner of COMMISSIONER 15 Social Security, 16 Defendant. — 17 — 18 INTRODUCTION 19 On December 4, 2017, Plaintiff filed applications for benefits under Titles II 20 and XVI of the Social Security Act, alleging disability beginning on July 21, 2014. 21 (Administrative Record (“AR”) 15.) Following denial of her applications initially 22 and on reconsideration (AR 128-131, 141-147), a hearing was held before an 23 Administrative Law Judge (“ALJ”). (AR 33-57.) Thereafter, the ALJ issued an 24 unfavorable decision on March 17, 2020, finding that Plaintiff suffered from severe 25 impairments consisting of “degenerative disc disease, carpal tunnel syndrome, — 26 — 27 1 Plaintiff’s name has been partially redacted in accordance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case 28 Management of the Judicial Conference of the United States. 1 migraine, ischemic heart disease, schizoaffective disorder, and obsessive-compulsive 2 disorder” but that Plaintiff did not have an impairment or combination of 3 impairments that met or equaled a listed impairment. (AR 18.) The ALJ further found 4 that Plaintiff retained the residual functional capacity (“RFC”) for light work as 5 defined in 20 C.F.R. §§ 404.1567 (b) and 416.967(b) except: 6 stand[ing] and walk[ing] must be limited to four hours during the eight 7 hour workday[.] In addition, climbing, stooping, bending at the waist, 8 kneeling, crouching, bending at the knees, and crawling must be limited 9 to occasionally. Further, handling (gross manipulation) and fingering 10 (fine manipulation) with the bilateral upper extremities must be limited 11 to frequently. Within the assigned work area, there must be less than 12 occasional seldom to rare exposure to concentrated extreme cold, heat, 13 vibration, fumes, odors, dust, gases, ventilation, and hazards, such as 14 machinery and heights. Assigned work must be limited to simple, 15 unskilled tasks with an SVP of one or two learned in thirty days or less 16 or by a brief demonstration. The assigned work must have minimal 17 change in the tasks assigned. In addition, the assigned work must be 18 performed primarily independently not as a member of a team or crew. 19 Finally, the assigned work must require no more than occasional brief 20 intermittent contact with coworkers and supervisors and no contact with 21 the public. 22 (AR 20.) 23 The ALJ determined that Plaintiff was capable of performing her past relevant 24 work as an assembly production worker. (AR 25.) Therefore, the ALJ ruled that 25 Plaintiff was not disabled. (AR 26.) The Appeals Council denied Plaintiff’s request 26 for review. (AR 1-2.) — 27 — — 28 — 1 Plaintiff filed a Complaint in this Court for judicial review pursuant to 42 2 U.S.C. § 405 (g). In accordance with the Court’s case management order, the parties 3 have filed briefs in support of their pleadings. This matter is now ready for decision. — 4 — 5 DISPUTED ISSUES 6 1. Whether the ALJ provided legally sufficient reasons for discounting the 7 opinion of Plaintiff’s therapist, Tiffany Knowlton, MA, LMFT. 8 2. Whether the matter should be remanded for further administrative 9 proceedings based on new and material evidence. 10 3. Whether the ALJ provided legally sufficient reasons for discounting 11 Plaintiff’s allegations of “mental dysfunction.” — 12 — 13 STANDARD OF REVIEW 14 Under 42 U.S.C. § 405 (g), the Court reviews the Commissioner’s decision to 15 determine whether the Commissioner’s findings are supported by substantial 16 evidence and whether the proper legal standards were applied. See Treichler v. 17 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). Substantial 18 evidence means “more than a mere scintilla” but less than a preponderance. See 19 Richardson v. Perales, 402 U.S. 389, 401 (1971); Lingenfelter v. Astrue, 504 F.3d 20 1028, 1035 (9th Cir. 2007). Substantial evidence is “such relevant evidence as a 21 reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 22 U.S. at 401. Where evidence is susceptible of more than one rational interpretation, 23 the Commissioner’s decision must be upheld. See Orn v. Astrue, 495 F.3d 625 , 630 24 (9th Cir. 2007); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1196 (9th Cir. 25 2004) (“When evidence reasonably supports either confirming or reversing the ALJ’s 26 decision, [the court] may not substitute [its] judgment for that of the ALJ.”). 27 /// 28 /// 1 DISCUSSION 2 Plaintiff contends that the ALJ failed to provide legally sufficient reasons for 3 implicitly rejecting the opinion of Plaintiff’s treating therapist, Tiffany Knowlton, 4 MA, LFMT, because the ALJ failed to mention Ms. Knowlton’s November 3, 2018 5 opinion in the ALJ’s decision. (ECF No. 18 at 2-7.) The Commissioner argues that 6 the ALJ’s failure to mention Ms. Knowlton’s opinion was harmless error because the 7 ALJ assessed limitations in the RFC consistent with Ms. Knowlton’s opinion, and 8 that the new regulations do not require the ALJ to use “specific and legitimate 9 reasons” to justify rejecting a treating medical source’s opinion. (ECF No. 19 at 110 3.) 11 A. Ms. Knowlton’s November 3, 2018, Opinion 12 The administrative record reveals that Ms. Knowlton began treating Plaintiff 13 on April 23, 2018. (AR 158.) Ms. Knowlton had treated Plaintiff in 18 sessions by 14 November 3, 2018 and planned to continue to treat Plaintiff on a weekly basis. (AR 15 158.) In a letter dated November 3, 2018, Ms. Knowlton stated that Plaintiff was 16 being treated for Bipolar I Disorder with Psychotic Features and opined that this 17 disorder severely impacts Plaintiff’s ability to function in all areas including 18 employment. (AR 158.) Ms. Knowlton stated Plaintiff presents a high level of 19 agitation that makes it difficult for her to maintain appropriate social interactions. 20 (AR 158.) Ms. Knowlton opined that Plaintiff’s mood swings manifest as aggression 21 and place Plaintiff at risk of having a psychotic episode. (AR 158.) Ms. Knowlton 22 noted that this aggression has led Plaintiff to lose previous employment. (AR 158.) 23 B. The ALJ’s Decision 24 In reaching her decision, the ALJ employed the five-step sequential process to 25 determine whether Plaintiff was disabled within the meaning of the Act. (AR 17-26.) 26 The ALJ stated that the record supports a finding of schizoaffective and obsessive27 compulsive disorders as severe impairments. (AR 23.) In summarizing the mental 28 health evidence, the ALJ discussed an initial mental health assessment Plaintiff 1 attended on April 23, 2018. (AR 23.) This session was with Ms. Knowlton. The ALJ 2 cites to the place in the record where Ms. Knowlton’s treatment notes from this 3 session are found but does not mention Ms. Knowlton’s name. (AR 23, citing AR 4 604-607.) The ALJ noted that Plaintiff was irritable in the initial treatment session, 5 did not want to be around other people, experienced hallucinations, was anxious, and 6 had limited judgment and poor insight. (AR 23, citing AR 604-607.) The ALJ also 7 referenced Ms. Knowlton’s treatment notes from Plaintiff’s initial examination, 8 which stated that Plaintiff was oriented during the examination, her appearance was 9 neat, her intelligence was average, her memory intact, her thought content normal, 10 and she denied delusions. (AR 23, citing AR 643.) 11 The ALJ also referred to the treatment notes of a treating psychiatrist, Merlyn 12 Scoggin, M.D., which stated that Plaintiff herself reported trouble concentrating, 13 anhedonia, impulsivity, low energy, compulsions, and obsessive behavior. (AR 23, 14 citing AR 668, 678.) The ALJ found that Plaintiff’s mental impairments support the 15 mental limitations set out in the RFC and that no further limitations were warranted. 16 (AR 23.) The ALJ noted that during Plaintiff’s treatment session with Dr. Scoggin, 17 Plaintiff reported hallucinations of two boys, who she believed were “good spirits.” 18 (AR 23.) The ALJ noted that Plaintiff’s mental status examinations performed during 19 her physical examinations were “frequently unremarkable” and that Plaintiff had no 20 emergency department visits or inpatient admissions for mental health treatments. 21 (AR 23.) 22 Finally, the record contains Ms. Knowlton’s opinion of Plaintiff’s condition 23 dated November 3, 2018 (AR 158), but the ALJ did not mention, give weight to, or 24 assesses the credibility or consistency of this opinion when determining Plaintiff’s 25 limitations or formulating Plaintiff’s RFC. (See AR 18-27.) 26 C. Relevant Law 27 In assessing an RFC, an ALJ must consider all relevant evidence in the record, 28 including medical records and “the effects of symptoms, including pain, that are 1 reasonably attributable to the medical condition.” Robbins v. Soc. Sec. Admin., 466 2 F.3d 880, 883 (9th Cir. 2006) (citation omitted). In reaching conclusions based upon 3 medical evidence, an ALJ must discuss significant and probative medical evidence 4 and, if rejected or discounted, explain why such evidence is rejected or discounted. 5 See id.; Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (holding federal 6 courts “demand that the agency set forth the reasoning behind its decisions in a way 7 that allows for meaningful review”); Vincent v. Heckler, 739 F.2d 1393, 1395 (9th 8 Cir. 1984) (holding ALJ must discuss significant and probative evidence and explain 9 why it was rejected). 10 The rules for the evaluation of medical evidence at the administrative level 11 have been revised for disability applications filed on or after March 27, 2017. See 12 Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 13 5844-01 (Jan. 18, 2017). Because Plaintiff filed her application on December 4, 2017, 14 it is governed by the revised rules. The new regulations provide that the 15 Commissioner “will not defer or give any specific evidentiary weight ... to any 16 medical opinion(s) ... including those from [the claimant’s] medical sources.” 20 17 C.F.R. §§ 404 .1520c(a), 416.920c(a). The revised rules provide that the Social 18 Security Administration will evaluate medical opinions according to the following 19 factors: supportability; consistency; relationship with the claimant; specialization; 20 and other factors such as the medical source’s familiarity with other evidence in the 21 record or with disability program requirements. 20 C.F.R. § 416 .920c(c)(1)-(5). The 22 most important of these factors are supportability and consistency. 20 C.F.R. 23 § 416.920c(b)(2). 24 Supportability is the extent to which an opinion or finding is supported by 25 relevant objective medical evidence and the medical source’s supporting 26 explanations. 20 C.F.R. § 416 .920c(c)(1). Consistency is the extent to which an 27 opinion or finding is consistent with evidence from other medical sources and non28 medical sources, including the claimants themselves. 20 C.F.R. §§ 416 .920c(c)(2), 1 416.902(j)(1). While the ALJ will articulate how she considered the most important 2 factors of supportability and consistency, an explanation for the remaining factors is 3 not required except when deciding among differing yet equally persuasive opinions 4 or findings on the same issue. 20 C.F.R. § 416 .920c(b). Further, where a medical 5 source provides multiple opinions, an ALJ is not required to articulate how she 6 considered each individual opinion but may address that medical source in a single 7 analysis of the relevant factors set forth above. 20 C.F.R. § 416 .920c(b)(1). 8 The Ninth Circuit has repeatedly held that an ALJ must provide clear and 9 convincing reasons to reject an uncontradicted doctor’s opinion and specific and 10 legitimate reasons where the record contains a contradictory opinion. See Trevizo v. 11 Berryhill, 871 F.3d 664, 675 (9th Cir. 2017). Plaintiff contends that this standard 12 survives the March 27, 2017 rules revisions and that the ALJ is still bound to provide 13 “clear and convincing reasons” or “specific and legitimate” reasons for rejecting a 14 medical opinion. (ECF No. 18 at 3-7.) The Commissioner argues that the standard 15 set out by the Ninth Circuit does not survive the rule revisions and are therefore not 16 applicable. (ECF No. 19 at 1 n.1.) The Ninth Circuit has not yet addressed whether 17 or how the new regulations alter analysis of the adequacy of an ALJ’s reasoning. 18 Thus, it is not clear whether the Ninth Circuit precedent requiring an ALJ provide 19 “clear and convincing” or “specific and legitimate reasons” for rejecting a treating 20 source’s medical opinions remains viable. See Allen T. v. Saul, 2020 WL 3510871 , 21 at *3 (C.D. Cal. June 29, 2020) (“It remains to be seen whether the new regulations 22 will meaningfully change how the Ninth Circuit determines the adequacy of an ALJ’s 23 reasoning and whether the Ninth Circuit will continue to require that an ALJ provide 24 ‘clear and convincing’ or ‘specific and legitimate reasons’ in the analysis of medical 25 opinions, or some variation of those standards.”); Thomas S. v. Comm’r of Soc. Sec., — 26 — 2020 WL 5494904 , at *2 (W.D. Wash. Sep. 11, 2020) (“The Ninth Circuit has not 27 yet stated whether it will continue to require an ALJ to provide ‘clear and convincing’ — 28 — 1 or ‘specific and legitimate’ reasons for rejecting medical opinions given the 2 Commissioner’s elimination of the hierarchy.”).2 3 Nevertheless, the Commissioner’s new regulations still require the ALJ to 4 explain his or her reasoning and to specifically address how he or she considered the 5 supportability and consistency of the medical opinion. See 20 C.F.R. §§ 404 .1520c, 6 416.920c. As always, the ALJ’s reasoning must still be free of legal error and 7 supported by substantial evidence. See Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 8 2020). Thus, even assuming that the Ninth Circuit’s more stringent requirements are 9 inapplicable here, the Court must determine whether the ALJ adequately explained 10 how she considered the supportability and consistency factors relative to the 11 physicians’ opinions and whether the reasons were supported by substantial 12 evidence. See Thomas S., 2020 WL 5494904 , at *2. 13 D. Analysis 14 Plaintiff argues that the ALJ erred by failing to mention Ms. Knowlton’s 15 November 3, 2018 opinion in the written decision. While the ALJ cites or references 16 Ms. Knowlton’s treatment notes from other sessions, at no point does the ALJ 17 mention Ms. Knowlton’s November 3, 2018 opinion, let alone evaluate the 18 consistency or supportability of it. The Commissioner concedes that the ALJ did not 19 mention this opinion (ECF No. 19 at 2), and the ALJ’s failure to acknowledge the 20 opinion in any discernable way is a strong indication that the ALJ failed to consider 21 it. This was error. See Conklin v. Colvin, 2016 WL 5791648 , at *5 (E.D. Cal. Oct. 3, 22 2016) (“The ALJ’s lack of consideration [of a medical opinion] makes it difficult for 23 the court to conduct its review of the final decision of the Commissioner and violates 24 the ALJ’s duty to evaluate all of the medical opinion evidence in the record.”); Marsh — 25 — — 26 — 2 As a general matter, this Court must defer to the new regulations, even where they conflict with prior judicial precedent, unless the prior judicial construction “follows from the unambiguous terms 27 of the statute and thus leaves no room for agency discretion.” See Allen T., 2020 WL 3510871 , at *3 (quoting Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Services, 545 U.S. 967 , 981-982 28 (2005)). 1 v. Colvin, 792 F.3d 1170 (9th Cir. 2015) (holding that an ALJ errs when they do not 2 mention a treating physician’s opinion); Garrison v. Colvin, 759 F.3d 995, 1012 (9th 3 Cir. 2014) (“Where an ALJ does not explicitly reject a medical opinion…he errs.”); 4 Dabney v. Comm’r of Soc. Sec., 2020 WL 5569787 (W.D. Wash. Sep. 17, 2020) 5 (finding an ALJ’s failure to discuss a medical opinion to be a serious error). 6 In response, the Commissioner argues that any error was harmless because the 7 limitations set out in the RFC adequately capture the limitations in the November 3, 8 2018 opinion. (ECF No. 19 at 2-3.) The Ninth Circuit has held that an ALJ’s failure 9 to mention a treating medical opinion is harmless if it is “inconsequential to the 10 ultimate nondisability determination” and that “a reviewing court cannot consider 11 [an] error harmless unless it can confidently conclude that no reasonable ALJ, when 12 fully crediting the testimony, could have reached a different disability 13 determination.” Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055-56 (9th Cir. 14 2006). More recently, the Ninth Circuit has stated that there may be some flexibility 15 in finding an ALJ’s error to be harmless, but “the more serious the ALJ’s error, the 16 more difficult it should be to show the error was harmless.” Marsh, 792 F.3d at 1173 . 17 In her November 3, 2018 opinion, Ms. Knowlton stated that Plaintiff’s “most 18 prevalent symptom is a high level of agitation making it particularly difficult to 19 maintain appropriate social interactions.” (AR 158.) In formulating the RFC, the ALJ 20 limited Plaintiff to simple work that “must be performed primarily independently not 21 as a member of a team or crew…[and] must require no more than occasional brief 22 intermittent contact with coworkers and supervisors and no contact with the public.” 23 (AR 20.) 24 While these limitations may adequately account for Plaintiff’s agitation and 25 difficulties in social interactions, they do not fully address other limitations in Ms. 26 Knowlton’s November 3 opinion. For instance, Ms. Knowlton stated that she was 27 treating Plaintiff for Bipolar I Disorder with Psychotic Features and that Plaintiff was 28 on the “severe end of the diagnostic spectrum.” She opined that Plaintiff experienced 1 mood swings which manifested as aggression and that Plaintiff was at risk of a 2 psychotic episode. (AR 158.) The ALJ does not mention Ms. Knowlton’s Bipolar I 3 with Psychotic Features opinion or the opinion regarding Plaintiff’s mood swings, 4 aggression, or risk of psychotic episodes. (See AR 20-24.) Therefore, it appears that 5 the ALJ did not attempt to assess these aspects of Ms. Knowlton’s opinion in 6 formulating the RFC. While the Commissioner’s counsel provides their view of how 7 Ms. Knowlton’s opined limitations could possibly be read into the RFC, the 8 interpretation of medical opinion evidence and how it factors into a claimant’s RFC 9 is a matter left solely to the ALJ, see Andrews v. Shalala, 53 F.3d 1035, 1039 (9th 10 Cir. 1995), and the ALJ has not provided any indication as to how she considered or 11 incorporated the November 3, 2018 opinion. Given the nature of the functional 12 limitations to which Ms. Knowlton opined3 and the ALJ’s silence as to the 13 supportability and consistency of these opinions, the Court is unable to conclude that 14 the ALJ’s RFC determination adequately captured Ms. Knowlton’s findings. See 15 Conklin, 2016 WL 5791648 , at *5 (holding that the ALJ’s failure to address the 16 “vague functional limitations” opined by a treating physician was reversible error 17 because the Court is prohibited from either speculating as to how the ALJ 18 incorporated the limitations or the ALJ’s reasons for rejecting them.) Accordingly, 19 the Court cannot “confidently conclude” that the error was harmless. See Stout, 454 20 F.3d at 1056. — 21 — 22 REMEDY 23 “When the ALJ denies benefits and the court finds error, the court ordinarily 24 must remand to the agency for further proceedings before directing an award of — 25 — — 26 — 3 In a mental impairment questionnaire dated January 17, 2020, Ms. Knowlton provided a further opinion regarding Plaintiff’s limitations. For example, she opined that Plaintiff suffers from 27 extreme limitations in five categories, including managing herself in the workplace, and opines that Plaintiff would be likely be absent from work at least four days per month. (ECF No. 18-1 at 2-3.) 28 Because that questionnaire was not before the ALJ, however, she could not have considered it. 1 benefits.” Leon v. Berryhill, 880 F.3d 1041, 1045 (9th Cir. 2017). Indeed, Ninth 2 Circuit case law “precludes a district court from remanding a case for an award of 3 benefits unless certain prerequisites are met.” Dominguez v. Colvin, 808 F.3d 403 , 4 407 (9th Cir. 2016) (citations omitted). “The district court must first determine that 5 the ALJ made a legal error, such as failing to provide legally sufficient reasons for 6 rejecting evidence. If the court finds such an error, it must next review the record as 7 a whole and determine whether it is fully developed, is free from conflicts and 8 ambiguities, and all essential factual issues have been resolved.” Dominguez, 808 9 F.3d at 407 (citation and internal quotation marks omitted). 10 Although the Court has found error as discussed above, the record is not fully 11 developed, and factual issues remain outstanding. Issues concerning Plaintiff’s 12 alleged disability “should be resolved through further proceedings on an open record 13 before a proper disability determination can be made by the ALJ in the first instance.” 14 See Brown-Hunter, 806 F.3d at 496 ; see also Treichler, 775 F.3d at 1101 (remand 15 for award of benefits is inappropriate where “there is conflicting evidence, and not 16 all essential factual issues have been resolved”) (citation omitted); Strauss v. Comm’r 17 of Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011) (same where the record 18 does not clearly demonstrate the claimant is disabled within the meaning of the Social 19 Security Act). Accordingly, the appropriate remedy is a remand for further 20 administrative proceedings. — 21 — 22 ORDER 23 IT IS THEREFORE ORDERED that Judgment be entered reversing the 24 decision of the Commissioner of Social Security and remanding this matter for 25 further administrative proceedings consistent with this opinion.4 It is not the Court’s — 26 — 27 4 In light of this conclusion, the Court declines to resolve Plaintiff’s remaining claims. See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) (“Because we remand the case to the ALJ for the 28 reasons stated, we decline to reach [plaintiff’s] alternative ground for remand.”). 1 || intent to limit the scope of the remand. — 2 — 3 || DATED: 7/1/2021 (Wy Ye é ° 4 —— ° ~ ALEXANDER F.MacKINNON 6 UNITED STATES MAGISTRATE JUDGE — 1 — — 8 — — 9 — — 10 — — 11 — — 12 — — 13 — — 14 — — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 — — 12 —