Kasper v. Commissioner of Social Security Administration ( 2020 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Kevin Kasper, No. CV-19-05810-PHX-GMS 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 16 At issue is the denial of Plaintiff Kevin Kasper’s Application for Disability 17 Insurance benefits by the Social Security Administration (SSA) under the Social Security 18 Act (“the Act”). Plaintiff filed a Complaint (Doc. 1) with this Court seeking judicial review 19 of that denial. This Court reverses and remands the Administrative Law Judge’s (“ALJ”) 20 decision (Doc. 11-3 at 11–33) as upheld by the Appeals Council (Id. at 2–6). 21 I. BACKGROUND 22 Plaintiff is a former professional football player. He alleges disability beginning on 23 August 1, 2008 (“disability onset date”). (Id. at 14.) His claim was denied initially on July 24 20, 2016, and upon reconsideration on March 25, 2016. (Id.) On June 29, 2018, he was 25 granted a hearing. (Id.) On December 11, 2018, the ALJ denied Plaintiff’s Application, and 26 on October 17, 2019, the Appeals Council denied Plaintiff’s Request for Review. (Id. at 1.) 27 The ALJ evaluated Plaintiff’s disability based on the following severe impairments: 28 AC joint restriction, degenerative joint disease of the ankle, knee impairment, lumbar disc 1 protrusion, cervical fracture, degenerative disc disease, and post-concussive syndrome. (Id. 2 at 17.) Ultimately, the ALJ concluded that Plaintiff was not disabled from the disability 3 onset date through December 31, 2015—Plaintiff’s date-last-insured (“DLI”). (Id. at 27.) 4 The ALJ found that Plaintiff “did not have an impairment or combination of impairments 5 that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 6 404, Subpart P, Appendix 1.” (Id. at 17.) Next, the ALJ calculated Plaintiff’s residual 7 functional capacity (“RFC”): 8 [Plaintiff] had the [RFC] to perform light work as defined in 20 CFR 404.1567(b) except he was limited to frequent climbing ramps and stairs, but 9 never ladders[,] ropes[, or] scaffolds. He could have frequently balanced, 10 stooped, kneeled, crouched, and crawled. The claimant was to avoid working around hazards such as moving machinery and unprotected heights. In 11 addition, he was limited to simple, routine, and repetitive work tasks 12 involving simple work related decisions and simple instructions.” 13 (Id. at 19.) Accordingly, the ALJ found that Plaintiff could not perform his past work as a 14 professional athlete but could make a successful transition to other work that existed in 15 significant numbers in the national economy. (Id. at 25-27.) 16 II. LEGAL STANDARDS 17 In determining whether to reverse an ALJ’s decision, the district court reviews only 18 those issues raised by the party challenging the decision. See Lewis v. Apfel, 236 F.3d 503, 19 517 n.13 (9th Cir. 2001). The Court may set aside the Commissioner’s disability 20 determination only if it is not supported by substantial evidence or is based on legal error. 21 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is relevant evidence 22 that a reasonable person might accept as adequate to support a conclusion considering the 23 record as a whole. Id. To determine whether substantial evidence supports a decision, the 24 Court must consider the record as a whole and may not affirm simply by isolating a 25 “specific quantum of supporting evidence.” Id. Generally, “[w]here the evidence is 26 susceptible to more than one rational interpretation, one of which supports the ALJ’s 27 decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 28 (9th Cir. 2002) (citations omitted). 1 To determine whether a claimant is disabled for purposes of the Act, the ALJ 2 follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of 3 proof on the first four steps, but the burden shifts to the Commissioner at step five. Tackett 4 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ determines whether 5 the claimant is presently engaging in substantial gainful activity. 20 C.F.R. 6 § 404.1520(a)(4)(i). At step two, the ALJ determines whether the claimant has a “severe” 7 medically determinable physical or mental impairment. 20 C.F.R. § 404.1520(a)(4)(ii). At 8 step three, the ALJ considers whether the claimant’s impairment or combination of 9 impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P 10 of 20 C.F.R. Part 404. 20 C.F.R. § 404.1520(a)(4)(iii). If so, the claimant is automatically 11 found to be disabled. Id. At step four, the ALJ assesses the claimant’s RFC and determines 12 whether the claimant is still capable of performing past relevant work. 20 C.F.R. 13 § 404.1520(a)(4)(iv). If not, the ALJ proceeds to the fifth and final step, where she 14 determines whether the claimant can perform any other work in the national economy 15 based on the claimant’s RFC, age, education, and work experience. 20 C.F.R. 16 § 404.1520(a)(4)(v). If not, the claimant is disabled. Id. 17 III. ANALYSIS 18 Plaintiff raises two arguments on appeal. First, Plaintiff argues that his ALJ was 19 unconstitutionally appointed. (Doc. 12 at 4–8.) Accordingly, Plaintiff requests a new 20 hearing before a constitutionally appointed ALJ. (Id. at 5.) Second, Plaintiff challenges the 21 ALJ’s evaluation of the medical opinions concerning Plaintiff’s cognitive and 22 psychological limitations. (Id. at 8–20.) As the ALJ incorrectly evaluated several medical 23 opinions in this case those errors require remand. 24 A. The ALJ erroneously rejected the opinions of four examining physicians who opined to significant cognitive limitations. 25 26 Since the end of his professional football career Plaintiff has had several 27 neurological evaluations. On February 18, 2009, (1) Dr. Matthew Meriggioli provided 28 Plaintiff a neurological consultation “to evaluate his impairment secondary to numerous 1 concussions suffered while playing NFL football.” (Doc. 11-10 at 852-860; Doc. 11-17 at 2 1907–08) On August 26, 2016, (2) Dr. Lorne Label conducted a neurological evaluation of 3 Plaintiff and found that Plaintiff meets the criteria for moderate dementia. (Doc. 11-18 at 4 1993–99.) The next day, (3) Dr. Serina Hoover, Psy.D., performed a comprehensive 5 neuropsychological evaluation of Plaintiff, which consisted of several tests over several 6 hours. (Id. at 2009–25.) On December 13, 2016, Plaintiff underwent another 7 neuropsychological examination by (4) Dr. Nick Wisdom, Ph.D. (Doc. 11-19 at 2184–90.) 8 Plaintiff next treated with (5) Dr. Jared Dinehart, Ph.D., on December 20, 2016, for 9 psychological and cognitive issues. (Id. at 2096.) Finally, on December 13, 2017, Plaintiff 10 received a neurological evaluation by (6) Dr. Randolph Evans. (Id. at 2182–83.) 11 The ALJ rejected all of these opinions. The ALJ rejected the opinions of Drs. Label 12 and Hoover because they were given after Plaintiff’s DLI, “and there is no reason to believe 13 the restrictions related back prior to December 31, 2015.” (Doc. 11-3 at 24.) The ALJ also 14 rejected Dr. Wisdom’s opinion for the same reason, but also rejected his opinion because 15 Plaintiff over-endorsed symptoms during one of the tests administered. (Id.) The ALJ did 16 not mention Dr. Evan’s opinion. Instead, the ALJ gave great weight to the opinions of 17 State-agency-reviewers.1 (Id. at 25.) Although the ALJ correctly rejected the opinions of 18 Dr. Meriggioli and Dinehart, she erred in the process of evaluating the rest. 19 While “[t]he ALJ must consider all medical opinion evidence,” there is a hierarchy 20 among the sources of medical opinions. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 21 2008). Those who have treated a claimant are treating physicians, those who examined but 22 did not treat the claimant are examining physicians, and those who neither examined nor 23 treated the claimant are nonexamining physicians. Lester v. Chater, 81 F.3d 821, 830 (9th 24 Cir. 1995). If a treating physician’s opinion is not given controlling weight, then the ALJ 25 must consider the relevant factors listed in 20 C.F.R. § 404.1527(c) and determine the 26 27 1 Defendant argues that Plaintiff does not dispute the ALJ’s weighing of the State- agency-reviewer’s opinions. (Doc. 14 at 12.) Yet, Plaintiff disputes the ALJ’s rejection of 28 several opinions (Dr. Meriggioli, Dr. Label, Dr. Evans, Dr. Hoover, and Dr. Wisdom) in favor of others (the State-agency-reviewers). (Doc. 12 at 20.) 1 appropriate weight to give the opinion. Orn, 495 F.3d at 632. If a treating physician’s 2 opinion is contradicted by another doctor’s opinion, the ALJ cannot reject the treating 3 physician’s opinion unless he provides specific and legitimate reasons that are based on 4 substantial evidence in the record.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 5 2005). Similarly, “[t]he opinion of an examining physician is . . . [generally] entitled to 6 greater weight than the opinion of a nonexamining physician.” Lester v. Chater, 81 F.3d 821, 7 830 (9th Cir. 1995). “[T]he opinion of an examining doctor, even if contradicted by another 8 doctor, can only be rejected for specific and legitimate reasons that are supported by 9 substantial evidence in the record.” Doc. 11-10 at 830–31. 10 1. The ALJ correctly rejected the opinions of Drs. Meriggioli and Dinehart. 11 12 The ALJ correctly rejected Dr. Meriggioli’s opinion because it was conclusory, 13 overly reliant on Plaintiff’s self-reports, and opined as to an ultimate issue--whether 14 Plaintiff is disabled--that is reserved to the ALJ. (Doc. 11-3 at 24.) Dr. Meriggioli’s opinion 15 is brief and lacks explanation regarding why Plaintiff is totally disabled. (Doc.11-10 at 16 852–60.) This insufficiency is further compounded by the lack of a treatment relationship 17 or corroborating medical records supporting Dr. Meriggioli’s conclusions. See Bayliss, 427 18 F.3d at 1216 (reiterating that the ALJ need not accept a doctor’s opinion that is brief, 19 conclusory, and inadequately supported by clinical findings). Additionally, the ALJ 20 correctly rejected the aspects of Dr. Meriggioli’s opinion on issues that are reserved to the 21 ALJ, including the ultimate issue of whether Plaintiff is disabled. See 20 C.F.R. 22 § 404.1527(d). Finally, the ALJ correctly rejected Dr. Meriggioli’s opinion because it was 23 based largely on Plaintiff’s self-reports, which the ALJ rejected and Plaintiff has not 24 challenged. See Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (“An ALJ may 25 reject a treating physician’s opinion if it is based ‘to a large extent’ on a claimant’s self- 26 reports that have been properly discounted as incredible.”). 27 The ALJ also correctly rejected Dr. Dinehart’s statement. Dr. Dinehart did not 28 clearly offer any opinion regarding Plaintiff’s functional limitations; instead, his statement 1 simply relays his treatment relationship with Plaintiff. (Doc. 11-19 at 2096.) Even if Dr. 2 Dinehart’s statement could be considered an opinion, the ALJ correctly rejected it because 3 Dr. Dinehart specified that his treatment began after Plaintiff’s DLI, and his opinion does 4 not appear in any way to relate back to the relevant period. 5 2. The ALJ failed to offer specific and legitimate reasons supported by substantial evidence for rejecting the opinions of Drs. Label, 6 Hoover, Wisdom, and Evans. 7 8 The sole reason the ALJ rejected the opinions of Drs. Label and Hoover was that 9 they were offered after Plaintiff’s DLI and apparently did not relate back to the relevant 10 period. (Doc. 11-3 at 24.) The ALJ provided the same justification for rejecting Dr. 11 Wisdom’s opinion but also rejected it because Plaintiff over-endorsed symptoms on one of 12 several administered tests, “which also renders the opinion less reliable.” Id. The ALJ did 13 not discuss Dr. Evans’s opinion despite the requirement that an ALJ consider all of the 14 medical opinion evidence. Tommasetti, 533 F.3d at 1041. 15 Though the timing of an opinion in relation to the DLI is a permissible 16 consideration, an ALJ cannot reject an opinion outright solely because it was rendered after 17 the DLI. Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988). However, in reaching his 18 opinion, Dr. Label reviewed medical history and records from the relevant period, ruled 19 out possible contemporaneous causes of Plaintiff’s impairments from within the relevant 20 period, and found that there was existing cognitive decline compared to Plaintiff’s historic 21 levels of performance during and predating the relevant period. (Doc. 11-18 at 1993–2000.) 22 All of these findings relate to the relevant period. Similarly, Dr. Hoover found that 23 Plaintiff’s limitations are likely permanent based on her finding that they have already 24 existed for several years (including the relevant period). (Id. at 2020.) Finally, Dr. Wisdom, 25 like Drs. Label and Hoover, reviewed medical records and history from the relevant period 26 and opined to impairments that are continuations of issues from that time. (Doc. 11-19 at 27 2184–90.) Because the opinions of Drs. Label, Hoover, and Wisdom all, in fact, relate back 28 to the relevant period, it was error for the ALJ to reject them on the basis that they did not 1 apply. 2 Defendant also urges rejection of Hoover’s opinion because it relies on Plaintiff’s 3 self-reports and does not cite medical evidence for support besides Hoover’s extensive 4 testing of Plaintiff. (Doc. 14 at 18.) But the ALJ did not rely on this rationale to reject 5 Hoover’s opinion. The Court is thus precluded from doing so after-the-fact. 6 The ALJ’s final reason for rejecting Wisdom’s opinion—that Plaintiff over- 7 endorsed symptoms on a test—is also unsupported by substantial evidence. Wisdom found 8 Plaintiff’s “MMPI could not be interpreted due to elevations observed across multiple 9 validity indicators . . . indicating significant symptom over-endorsement.”2 (Doc. 11-19 at 10 2189.) Similarly, Wisdom found Plaintiff had issues with the “MINI” test, but “it became 11 apparent that he did not fully understand the item content despite multilple (sic) attempts 12 to explain their meaning.” (Id.) These two tests, however, relate to personality and 13 emotional functioning. It is not apparent that they impair the validity of the rest of 14 Wisdom’s findings. Dr. Wisdom performed several other tests concerning Plaintiff’s 15 cognitive—rather than psychological—impairments. (Id. 2184–90.) Significantly, Wisdom 16 found that Plaintiff was not malingering on those cognitive tests and determined that 17 Plaintiff demonstrated significant impairment across all tested cognitive domains. (Id. at 18 2187–89.) The ALJ’s reliance on the indicators of over-endorsement in these two tests does 19 not justify rejecting Wisdom’s entire opinion, especially when Wisdom’s testing controlled 20 for malingering and Wisdom provided an alternative explanation which the ALJ does not 21 address. Finally, contrary to Defendant’s arguments, the erroneous rejection of these 22 medical opinions was not harmless. (Doc. 14 at 19.) Several examiners opined to severe 23 impairments and limitations that, if properly evaluated and credited, cannot be said to have 24 an “inconsequential” effect on the outcome of Plaintiff’s case. See Stout v. Comm’r, Soc. 25 2 Dr. Hoover found that Plaintiff likely over-endorsed symptoms on the same test 26 when administered by Hoover, however the ALJ did not rely on this as a basis for rejecting Hoover’s opinion. (Doc. 11-18 at 2017.) Hoover concluded that the over-endorsement may 27 have been “a plea for help,” or “that he may have responded to items differently on the first half of the test than he responded to these similar items during the latter half of the test 28 [because of] testing fatigue,” since Hoover’s testing of Plaintiff lasted nearly seven hours. (Id. at 2011, 2017.) 1 Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006). Because the ALJ erred in rejecting 2 several critical and relevant medical opinions, substantial evidence does not support the 3 ALJ’s nondisability determination. 4 B. Challenge to the ALJ’s appointment is waived 5 “‘[O]ne who makes a timely challenge to the constitutional validity of the 6 appointment of an officer who adjudicates his case’ is entitled to relief.” Lucia v. SEC, 138 7 S. Ct. 2044, 2055 (2018) (quoting Ryder v. United States, 515 U.S. 177, 182 (1995)). The 8 circuits have reached different conclusions about whether a plaintiff waives an 9 appointments clause challenge by not raising it at the administrative level. Compare Carr 10 v. Comm’r, 961 F.3d 1267 (10th Cir. 2020), with Cirko v. Comm’r, 948 F.3d 148 (3d Cir. 11 2020). Although the Ninth Circuit has not ruled on whether a social security claimant must 12 exhaust an appointments clause challenge before the ALJ, the Circuit has found that “at 13 least when claimants are represented by counsel, they must raise all issues and evidence at 14 their administrative hearings in order to preserve them on appeal.” Meanel v. Apfel, 172 15 F.3d 1111, 1115 (9th Cir. 1999); see also Shaibi v. Berryhill, 883 F.3d 1102, 1109 (9th Cir. 16 2017) (clarifying that Meanel “remains binding on this court with respect to proceedings 17 before an ALJ” despite the Supreme Court’s holding in Sims v. Apfel, 530 U.S. 103 (2000)). 18 Applying Ninth Circuit case law, most district courts within the Ninth Circuit have found 19 that social security claimants must exhaust issues before the ALJ. See, e.g., Shannon W. v. 20 Comm’r, No. 3:19-CV-6143-DWC, 2020 WL 5940073, at *7 (W.D. Wash. Oct. 7, 2020); 21 Montijo v. Comm’r, No. CV-19-1088-PHX-ESW, 2020 WL 813771, at * 5 (D. Ariz. Feb. 22 19, 2020); Samuel F. v. Berryhill, No. CV 17-7068-JPR, 2018 WL 5984187, at *2 n.6 (C.D. 23 Cal. Nov. 14, 2018). This Court joins in that conclusion. Therefore, the Court finds that in 24 a social security case an appointments clause challenge is waived on appeal if it is not 25 brought at the administrative level. 26 Here, it is undisputed that Plaintiff did not argue that the ALJ was unconstitutionally 27 appointed during the administrative process. Accordingly, Plaintiff waived his 28 appointments clause challenge. 1 C. The correct remedy is to remand this case for further proceedings. 2 The credit-as-true rule, if applied here, would result in a remand of Plaintiff’s case 3 for a computation and payment of benefits. See Garrison v. Colvin, 759 F.3d 995, 1020 4 (9th Cir. 2014). It applies if each part of a three-part test is satisfied. Id. First, the ALJ must 5 have failed to provide sufficient reasons for rejecting the claimant’s testimony or medical 6 opinions. Id. Next, the record must have been fully developed and further administrative 7 proceedings would serve no useful purpose. Id. Further administrative proceedings serve a 8 useful purpose when there are outstanding conflicts or ambiguities in the evidence that 9 require resolution. Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1101 (9th Cir. 10 2014). Finally, if the improperly discredited evidence were credited as true, the ALJ would 11 be required to find the claimant disabled. Garrison, 759 F.3d at 1020. Even if all elements 12 of the credit-as-true rule are met, the Court maintains “flexibility to remand for further 13 proceedings when the record as a whole creates serious doubt as to whether the claimant 14 is, in fact, disabled within the meaning of the Social Security Act.” Id. 15 The credit-as-true rule does not apply here because there are significant factual 16 conflicts that require resolution. While Plaintiff may have significant cognitive 17 impairments and limitations, the record is unclear if and when they rose to a disabling level 18 during the relevant period. A State-agency-reviewer concurred that Hoover’s examination 19 establishes disability after Plaintiff’s DLI (though the reviewer found it did not before the 20 DLI). (Doc. 11-4 at 109) The question of any such disability, and its timing, is a question 21 for the ALJ upon remand. 22 IT IS THEREFORE ORDERED reversing the December 6, 2018 decision of the 23 Administrative Law Judge (Doc. 11-3 at 11–33), as upheld by the Appeals Council 24 (Doc. 11-3 at 1–6). 25 IT IS FURTHER ORDERED remanding this case to the Social Security 26 Administration. On remand, the Commissioner will conduct any necessary further 27 proceedings, offer the claimant the opportunity for a supplemental hearing, and issue a new 28 decision with evidentiary support for the findings. The Appeals Council will instruct the || ALJ to reevaluate the medical opinion evidence in accordance with this Order. The Appeals Council will instruct the ALJ to take further action, as warranted, to complete the 3 || administrative record and resolve the above issues. 4 IT IS FURTHER ORDERED directing the Clerk of Court to enter final judgment in favor of Plaintiff, and against Defendant, reversing the final decision of the 6 || Commissioner. 7 Dated this 2nd day of December, 2020. Wi 10 Chief United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -10-