Petrick v. Commissioner of Social Security Administration ( 2023 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Stephen Petrick, No. CV-22-08175-PCT-JJT 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 At issue is the denial of Plaintiff Stephen Petrick’s Application for Disability 16 Insurance Benefits and Supplemental Security Income by the Social Security 17 Administration (“SSA”) under the Social Security Act (“the Act”). Plaintiff filed a 18 Complaint (Doc. 1) with this Court seeking judicial review of that denial, and the Court 19 now addresses Plaintiff’s Opening Brief (Doc. 15, “Pl. Br.”), Defendant Social Security 20 Administration Commissioner’s Answering Brief (Doc. 19, “Def. Br.”), and Plaintiff’s 21 Reply (Doc. 22). The Court has reviewed the briefs and Administrative Record (Doc. 14, 22 “R.”) and now reverses the decision of the Administrative Law Judge (“ALJ”) (R. at 15-28) 23 as upheld by the Appeals Council (R. at 1–7). 24 I. BACKGROUND 25 Plaintiff filed an application for Disability Insurance Benefits and Supplemental 26 Security Income on December 3, 2019 (R. at 148) for a period of disability beginning 27 October 11, 2019 (R. at 15). Plaintiff’s claims were initially denied on March 11, 2020, 28 and upon reconsideration on June 1, 2020. (R. at 15.) Plaintiff then testified at a hearing 1 held before an ALJ on June 2, 2021. (R. at 70–99.) On June 29, 2021, the ALJ denied 2 Plaintiff’s Applications (R. at 15–28), and on August 16, 2022, the Appeals Council denied 3 Plaintiff’s request for review of the ALJ’s decision (R. at 1–7). On September 28, 2022, 4 Plaintiff filed this action seeking judicial review of the denial. 5 The Court has reviewed the medical evidence and finds it unnecessary to provide a 6 complete summary here. The pertinent medical evidence will be discussed in addressing 7 the issues raised by the parties. In short, upon considering the medical records and opinions, 8 the ALJ found that Plaintiff had the following severe impairments: depressive disorder, 9 anxiety disorder, social anxiety, and alcohol dependence in reported remission. (R. at 18.) 10 Ultimately, the ALJ determined that Plaintiff “does not have an impairment or 11 combination of impairments that meets or medically equals the severity of one of the listed 12 impairments in 20 CFR Part 404.” (R. at 19.) The ALJ found that Plaintiff has the residual 13 functional capacity (“RFC”) “to perform a full range of work at all exertion levels” but 14 with certain non-exertional limitations, including no in-person interaction with the public, 15 only occasional interaction with coworkers, and no working in tandem. (R. at 21.) Based 16 on the vocational expert’s answers to hypothetical questions, the ALJ concluded that 17 Plaintiff could perform work as a custodian, a landscape laborer, or a greenhouse laborer 18 and is not disabled under the Act. (R. at 27.) 19 II. LEGAL STANDARD 20 In determining whether to reverse an ALJ’s decision, the district court reviews only 21 those issues raised by the party challenging the decision. See Lewis v. Apfel, 236 F.3d 503, 22 517 n.13 (9th Cir. 2001). The court may set aside the Commissioner’s disability 23 determination only if the determination is not supported by substantial evidence or is based 24 on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is 25 more than a scintilla, but less than a preponderance; it is relevant evidence that a reasonable 26 person might accept as adequate to support a conclusion considering the record as a whole. 27 Id. To determine whether substantial evidence supports a decision, the court must consider 28 the record as a whole and may not affirm simply by isolating a “specific quantum of 1 supporting evidence.” Id. As a general rule, “[w]here the evidence is susceptible to more 2 than one rational interpretation, one of which supports the ALJ’s decision, the ALJ’s 3 conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) 4 (citations omitted). 5 To determine whether a claimant is disabled for purposes of the Act, the ALJ 6 follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of 7 proof on the first four steps, but the burden shifts to the Commissioner at step five. Tackett 8 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ determines whether 9 the claimant is presently engaging in substantial gainful activity. 20 C.F.R. 10 § 404.1520(a)(4)(i). If so, the claimant is not disabled, and the inquiry ends. Id. At step 11 two, the ALJ determines whether the claimant has a “severe” medically determinable 12 physical or mental impairment. 20 C.F.R. § 404.1520(a)(4)(ii). If not, the claimant is not 13 disabled, and the inquiry ends. Id. At step three, the ALJ considers whether the claimant’s 14 impairment or combination of impairments meets or medically equals an impairment listed 15 in Appendix 1 to Subpart P of 20 C.F.R. Part 404. 20 C.F.R. § 404.1520(a)(4)(iii). If so, 16 the claimant is automatically found to be disabled. Id. If not, the ALJ proceeds to step four. 17 Id. At step four, the ALJ assesses the claimant’s RFC and determines whether the claimant 18 is still capable of performing past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If so, the 19 claimant is not disabled, and the inquiry ends. Id. If not, the ALJ proceeds to the fifth and 20 final step, where she determines whether the claimant can perform any other work in the 21 national economy based on the claimant’s RFC, age, education, and work experience. 22 20 C.F.R. § 404.1520(a)(4)(v). If so, the claimant is not disabled. Id. If not, the claimant is 23 disabled. Id. 24 III. ANALYSIS 25 Plaintiff raises two arguments for the Court’s consideration: (1) the ALJ erred by 26 rejecting the medical opinions of Plaintiff’s treating providers, and (2) the ALJ erred by 27 failing to consider Plaintiff’s bipolar disorder and adjustment disorder. (Pl. Br. at 8, 15.) 28 1 A. The Medical Opinions of the Treating Providers 2 The Ninth Circuit no longer accords special deference to an examining physician. 3 Woods v. Kijakazi, 32 F. 4th 785, 792 (9th Cir. 2022). In 2017, the Social Security 4 Administration amended the regulations for evaluating medical evidence. See Revisions to 5 Rules Regarding Evaluation of Medical Evidence, 82 Fed. Reg. 5844, 5844 (Jan. 18, 2017). 6 The 2017 regulations provide that “[w]e will not defer or give any specific evidentiary 7 weight, including controlling weight, to any medical opinion . . . . The most important 8 factors we consider when we evaluate the persuasiveness of medical opinions . . . are 9 supportability . . . and consistency.” 20 C.F.R. § 404.1520c(a). Other factors, which an ALJ 10 “may, but [is] not required to[] explain” when evaluating the persuasiveness of a medical 11 opinion, are the medical source’s “relationship with the claimant,” “specialization,” 12 “familiarity with the other evidence in the claim,” and “understanding of our disability 13 program’s policies and evidentiary requirements.” 20 C.F.R. § 404.1520c(b)(2), (c). 14 Moreover, the Ninth Circuit held its requirement that ALJs provide “specific and 15 legitimate reasons” for rejecting a treating or examining doctor’s opinion is incompatible 16 with the revised regulations. Woods, 32 F. 4th at 790. Nonetheless, in rejecting an 17 examining or treating doctor’s opinion as unsupported or inconsistent, an ALJ must provide 18 an explanation—that is, reasons—supported by substantial evidence. Id. This means that 19 the ALJ “must ‘articulate . . . how persuasive’ [she] finds ‘all of the medical opinions’ from 20 each doctor or other source, and ‘explain how [she] considered the supportability and 21 consistency factors’ in reaching these findings.” Id. (citing 20 C.F.R. § 404.1520c(b), 22 (b)(2)). 23 Plaintiff argues that the ALJ erred by rejecting the opinions of his treating social 24 worker, Katherine Miller, and his treating psychologist, Dr. Debbie Ritterbush. Ms. Miller 25 and Dr. Ritterbush opined that Plaintiff has moderate to marked limitations in the mental 26 abilities required to do semi-skilled work, and mild to marked limitations in the mental 27 abilities required to do unskilled work and particular types of jobs. (R. at 614–15, 623–24.) 28 The ALJ found the opinions of Ms. Miller and Dr. Ritterbush to have limited 1 persuasiveness because the opinions were “not supported by these providers’ treatment 2 records” and were “inconsistent with the greater record.” (R. at 25.) The ALJ also found 3 that the symptoms were “not shown in evidence” and the opined limitations were “extreme 4 and inconsistent with the record.” (R. at 25.) The ALJ explained that there was no 5 “significant evidence of a deficiency of concentration, persistence, or pace or episodes of 6 deterioration” as indicated on the providers’ forms. (R. at 25.) The only further explanation 7 the ALJ gave for rejecting the providers’ opinions was that they had not treated Plaintiff 8 for 12 months before completing the forms, and Ms. Miller was “not an acceptable medical 9 source.” (R. at 25.) 10 Plaintiff contends the ALJ’s reasoning is insufficient because it consists of only 11 “bare conclusions.” (Pl. Br. at 12.) Defendant counters that the ALJ sufficiently discussed 12 supportability and consistency because “substantial evidence supports the ALJ’s findings.” 13 (Def. Br. at 7.) 14 Defendant points to the ALJ’s finding that the opinions were not supported by 15 treatment records and argues that Dr. Ritterbush’s opinion was properly discounted 16 because the only treatment notes in the record are from Ms. Miller. (Def. Br. at 6.) As for 17 the ALJ’s finding that the opinions were “inconsistent with the greater record,” Defendant 18 argues the evidence shows Plaintiff exhibited only mild to moderate difficulties with social 19 interaction, as demonstrated by Plaintiff’s good rapport with providers and his pleasant and 20 cooperative interactions during appointments. (R. 426, 737.) Defendant also offers 21 examples of one examiner who reported Plaintiff to have “mild” anxiety disorder with no 22 limitations, and another who reported Plaintiff to have “non severe” anxiety with no 23 significant limitations. (R. 439–40, 106–07.) Defendant raises similar arguments as to 24 Ms. Miller. 25 Despite mentioning supportability and inconsistency, the ALJ failed to “explain 26 how [she] considered the supportability and consistency factors” in reaching the findings. 27 See Woods, 32 F.4th at 792. The ALJ gave no reasoning or specific examples for finding 28 that the opinions were not supported by treatment records. (R. at 25.) And although the 1 ALJ mentioned broadly in the factual recitation that some evidence indicated Plaintiff 2 interacted normally with doctors (R. at 20), the decision does not mention this evidence as 3 the reason for discounting the providers’ opinions. Instead, the ALJ merely concluded, 4 without any explanation or citation, that the opinions were unsupported by treatment 5 records and inconsistent with the greater record. 6 The existence of some substantial evidence that plausibly could support the ALJ’s 7 conclusion is insufficient to uphold the denial. “[A]n ALJ cannot reject an examining or 8 treating doctor’s opinion as unsupported or inconsistent without providing an explanation 9 supported by substantial evidence.” Woods, 32 F.4th at 792 (emphasis added). And the 10 Court must be able to “review the ALJ’s decision based on the reasoning and factual 11 findings offered by the ALJ—not post hoc rationalizations that attempt to intuit what the 12 adjudicator may have been thinking.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 13 1225 (9th Cir. 2009). 14 Defendant’s explanations here are exactly that—post hoc rationalizations that 15 cannot form the basis for affirming the ALJ’s decision. Although Defendant identifies 16 various pieces of evidence that the ALJ could have cited as the basis for discrediting 17 Ms. Miller’s and Dr. Ritterbush’s opinions, the ALJ did not actually cite that evidence as 18 reasons for doing so. The decision thus lacks sufficient reasoning for the Court “to 19 meaningfully determine whether the ALJ’s conclusions were supported by substantial 20 evidence.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th Cir. 2014). 21 Accordingly, the Court shall remand to allow the ALJ to properly consider Ms. Miller’s 22 and Dr. Ritterbush’s opinions. 23 B. Plaintiff’s Bipolar Disorder and Adjustment Disorder 24 Plaintiff also argues that the ALJ erred by failing to address his bipolar disorder and 25 adjustment disorder. Multiple medical sources have assessed Plaintiff as having bipolar 26 disorder (R. at 629, 708, 732, 737) and adjustment disorder (R. at 524, 667). 27 In assessing Plaintiff’s RFC, the ALJ must “consider all of [his] medically 28 determinable impairments . . ., including [those] that are not ‘severe.’” 20 C.F.R. 1 § 404.1545(a)(2). Here, the ALJ found Plaintiff’s severe impairments to be depressive 2 disorder, anxiety disorder, social anxiety, and alcohol dependence in reported remission. 3 (R. at 18.) The ALJ also found several non-severe impairments. (R. at 18.) But the decision 4 makes no mention whatsoever of either bipolar disorder or adjustment disorder. 5 Defendant argues not that the ALJ addressed the disorders, but that Plaintiff “failed 6 to fulfill his burden at step two of establishing that additional medically determinable 7 impairments significantly limited his ability to perform basic work activities.” (Def. Br. at 8 10.) Defendant cites Burch v. Barnhart to argue that Plaintiff has the burden of proving a 9 disability at step two of the analysis. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 10 2005) (“[C]laimant carries the initial burden of proving a disability in steps one through 11 four.”) And Defendant further argues that Plaintiff may not simply point to evidence 12 supporting his diagnosis, but instead must “produce evidence of significant functional 13 limitations flowing from these impairments.” (Def. Br. at 10–11.) 14 Defendant overstates Plaintiff’s burden at step two. Although Plaintiff carries the 15 burden through the first four steps, it does not follow that Plaintiff must prove at step two 16 that every impairment is severe. To the contrary, the ALJ must consider every impairment 17 of which she is aware, including non-severe impairments. 20 C.F.R. 404.1545(a)(2). Here, 18 the ALJ made no determination as to whether Plaintiff’s bipolar disorder and adjustment 19 disorder were severe or not. There is no discussion of either disorder at all. 20 Defendant also argues that the ALJ’s mention of symptoms waxing and waning was 21 a sufficient discussion of bipolar disorder. (Def. Br. at 11.) And Defendant contends the 22 RFC already accounted for any functional limitations produced by the episodic nature of 23 bipolar disorder. (Def. Br. at 11.) Defendant thus argues that any error at step two was 24 harmless. (Def. Br. at 11–12.) 25 The Court disagrees. Although the ALJ found that Plaintiff’s symptoms wax and 26 wane, she noted without mentioning bipolar disorder that this correlates with Plaintiff 27 going on and off his medications. (R. at 22.) And regarding both the waxing and waning 28 of symptoms and the episodic nature of bipolar disorder, it is not this Court’s place to 1 “speculate as to the grounds for the ALJ’s conclusions.” Treichler, 775 F.3d at 1103. 2 Because the decision is completely devoid of discussion of bipolar disorder or adjustment 3 disorder, it is not “clear from the record that the ALJ’s error was inconsequential to the 4 ultimate nondisability determination.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 5 2008) (internal quotations omitted). The Court, therefore, cannot conclude that the error is 6 harmless, and shall remand to allow the ALJ to properly discuss bipolar disorder and 7 adjustment disorder. 8 C. The Credit-as-True Rule 9 Plaintiff asks the Court to apply the “credit-as-true” rule, which would result in 10 remand of Plaintiff’s case for payment of benefits rather than for further proceedings. (Pl. 11 Br. at 18.) The credit-as-true rule only applies in cases that raise “rare circumstances” 12 which permit the Court to depart from the ordinary remand rule under which the case is 13 remanded for additional investigation or explanation. Treichler, 775 F.3d at 1099–1102. 14 These rare circumstances arise when three elements are present. First, the ALJ must have 15 failed to provide legally sufficient reasons for rejecting medical evidence. Id. at 1100. 16 Second, the record must be fully developed, there must be no outstanding issues that must 17 be resolved before a determination of disability can be made, and the Court must find that 18 further administrative proceedings would not be useful. Id. at 1101. Further proceedings 19 are considered useful when there are conflicts and ambiguities that must be resolved. Id. 20 Third, if the above elements are met, the Court may “find[] the relevant testimony credible 21 as a matter of law . . . and then determine whether the record, taken as a whole, leaves ‘not 22 the slightest uncertainty as to the outcome of [the] proceeding.’” Id. (citations omitted). 23 In this case, the ordinary remand rule applies. The record is not sufficiently 24 developed as to Plaintiff’s bipolar disorder and adjustment disorder, nor is the Court 25 satisfied that there is no uncertainty as to the outcome of the proceedings. Accordingly, the 26 Court remands to the ALJ to properly consider Ms. Miller’s and Dr. Ritterbush’s opinions 27 and discuss Plaintiff’s bipolar disorder and adjustment disorder. 28 1 IT IS THEREFORE ORDERED reversing the decision of the ALJ (R. at 15—28) 2|| as upheld by the Appeals Council (R. at 1-7). 3 IT IS FURTHER ORDERED remanding this case to the Social Security Administration for further proceedings consistent with the Order. 5 IT IS FURTHER ORDERED directing the Clerk to enter final judgment 6 || consistent with the Order and close this case. 7 Dated this 8th day of November, 2023. CN 9 United State@District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9-