Taylor v. Commissioner of Social Security ( 2022 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 DAVID T., 8 Plaintiff, Case No. C21-886 RAJ 9 v. ORDER REVERSING AND 10 REMANDING DENIAL OF 11 COMMISSIONER OF SOCIAL BENEFITS SECURITY, 12 Defendant. 13 Plaintiff seeks review of the denial of his applications for supplemental security 14 income and disability insurance benefits. Plaintiff contends the ALJ erred by rejecting 15 (1) his symptom testimony, (2) the opinions of David Mashburn, Ph.D., and (3) the 16 opinions of Leslie Postovoit, Ph.D., and Richard Borton, Ph.D. Dkt. 12 at 1. As 17 discussed below, the Court REVERSES the Commissioner’s final decision and 18 19 REMANDS the matter for further administrative proceedings under sentence four of 42 20 U.S.C. § 405(g). 21 BACKGROUND 22 Plaintiff is 56 years old, has at least a high school education, and has no past 23 relevant work. Admin. Record (“AR”) (Dkt. 10) 27. On September 30, 2019, Plaintiff 1 applied for benefits, alleging disability as of January 1, 2010. AR 16, 172–78. Plaintiff’s 2 applications were denied initially and on reconsideration. AR 68–95. At Plaintiff’s 3 request, ALJ Bonnie Hannan held a telephonic hearing. AR 34–67. At the hearing, 4 Plaintiff, through counsel, moved to amend his alleged disability onset date to September 5 30, 2019, which effectively dismissed his disability insurance benefits claim. AR 41. 6 The ALJ granted this request. AR 16. 7 ALJ Hannan subsequently issued a decision finding Plaintiff not disabled. AR 8 16–29. In relevant part, ALJ Hannan found Plaintiff had severe impairments of 9 depression, posttraumatic stress disorder, anxiety, and borderline personality disorder. 10 AR 19. The ALJ found Plaintiff had the residual functional capacity to perform work at 11 12 all exertional levels, with additional cognitive, adaptive, and social limitations. AR 23. 13 The Appeals Council denied Plaintiff’s request for review, making the ALJ’s 14 decision the Commissioner’s final decision. AR 1–4. 15 DISCUSSION 16 The Court may set aside the Commissioner’s denial of Social Security benefits 17 only if the ALJ’s decision is based on legal error or not supported by substantial evidence 18 in the record as a whole. Ford v. Saul, 950 F.3d 1141, 1153–54 (9th Cir. 2020). 19 A. Plaintiff’s Testimony 20 Plaintiff contends the ALJ erred by failing to give clear and convincing reasons to 21 reject his testimony. Dkt. 12 at 2–5. Plaintiff testified he cannot work because of anxiety 22 and inability to maintain appropriate relationships with others. AR 45, 216. He testified 23 1 he has anxiety attacks that interfere with his ability to focus, read, and, at times, leave his 2 home. AR 47–49, 54, 221, 247. He testified to social outbursts, such as while riding 3 public transportation or when interacting with close friends and family. AR 55–56. He 4 testified he has trouble interacting with people due to paranoia and anger. AR 60, 222, 5 247. He testified he has depression that makes it difficult to eat and get dressed, and 6 causes him to sleep approximately 16 hours every day. AR 60–61, 242. 7 The Ninth Circuit has “established a two-step analysis for determining the extent 8 to which a claimant’s symptom testimony must be credited.” Trevizo v. Berryhill, 871 9 F.3d 664, 678 (9th Cir. 2017). The ALJ must first determine whether the claimant has 10 presented objective medical evidence of an impairment that “could reasonably be 11 12 expected to produce the pain or other symptoms alleged.” Garrison v. Colvin, 759 F.3d 13 995, 1014–15 (9th Cir. 2014). At this stage, the claimant need only show the impairment 14 could reasonably have caused some degree of the symptoms; she does not have to show 15 the impairment could reasonably be expected to cause the severity of symptoms alleged. 16 Id. The ALJ found Plaintiff met this step. AR 24. 17 If the claimant satisfies the first step, and there is no evidence of malingering, the 18 ALJ may only reject the claimant’s testimony “by offering specific, clear and convincing 19 reasons for doing so. This is not an easy requirement to meet.” Garrison, 759 F.3d at 20 1014–15. 21 The ALJ erred in rejecting Plaintiff’s symptom testimony. An ALJ may reject a 22 claimant’s symptom testimony when it is contradicted by the medical evidence. See 23 1 Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008) (citing 2 Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir.1995)). But the ALJ must explain how 3 the medical evidence contradicts the claimant’s testimony. See Dodrill v. Shalala, 12 4 F.3d 915, 918 (9th Cir. 1993). Here, the ALJ merely documented some of the evidence, 5 failing to provide any analysis as to how it contradicted Plaintiff’s testimony. See AR 24. 6 The ALJ noted Plaintiff variously reported or showed an anxious, irritable mood, and 7 labile, reactive affect, among other things. AR 24, 538, 550, 568, 578. The ALJ 8 attempted to contrast this by pointing to findings of normal memory, hygiene, fund of 9 knowledge, concentration, insight, and judgment. AR 24, 552–53, 560, 563, 584. But 10 those findings are not in contradiction. One may have a normal memory and an anxious 11 12 mood at the same time. Plaintiff displayed just that, as he showed psychomotor agitation, 13 pressured and tangential speech, labile affect, and depressed, anxious mood at many of 14 the appointments to which the ALJ cited as showing normal findings. AR 552–53, 560, 15 563, 584. The ALJ failed to give any reasonable explanation as to how the medical 16 evidence contradicted Plaintiff’s testimony, and therefore erred. 17 The ALJ further erred in rejecting Plaintiff’s testimony as contradicted by his daily 18 activities. The ALJ noted Plaintiff handled his own personal care, prepared his own 19 meals, used public transportation, and had friends. AR 25. “One does not need to be 20 ‘utterly incapacitated’ in order to be disabled.” Vertigan v. Halter, 260 F.3d 1044, 1050 21 (9th Cir. 2001) (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). The ALJ 22 failed to identify how Plaintiff was engaging in these activities to an extent that they 23 1 contradicted his testimony. The ALJ therefore erred in rejecting Plaintiff’s testimony. 2 B. Dr. Mashburn’s Opinions 3 Plaintiff contends the ALJ erred by rejecting Dr. Mashburn’s opinions. Dkt. 12 at 4 5–6. Dr. Mashburn examined Plaintiff on March 5, 2020. AR 549–55. Dr. Mashburn 5 opined Plaintiff had marked limitations in his ability to perform activities within a 6 schedule, maintain regular attendance, communicate and perform effectively in a work 7 setting, maintain appropriate behavior in a work setting, and complete a normal work day 8 and week without interruptions from his psychologically based symptoms. AR 551. 9 The Commissioner argues new regulations promulgated in 2017 change the 10 standard by which the ALJ’s reasons for rejecting medical providers’ opinions are 11 12 measured. See Dkt. 16 at 5–6. In 2017, the Commissioner issued new regulations 13 governing how ALJs are to evaluate medical opinions. See Revisions to Rules Regarding 14 the Evaluation of Medical Evidence, 82 Fed. Reg. 5844-01, 2017 WL 168819 (Jan. 18, 15 2017). Under the new regulations, for claims filed on or after March 27, 2017, the 16 Commissioner “will not defer or give any specific evidentiary weight . . . to any medical 17 opinion(s) . . . including those from [the claimant’s] medical sources.” 20 C.F.R. §§ 18 404.1520c(a), 416.920c(a). The ALJ must nonetheless explain with specificity how he or 19 she considered the factors of supportability and consistency in evaluating the medical 20 opinions. 20 C.F.R. §§ 404.1520c(a)–(b), 416.920c(a)–(b). That explanation must be 21 legitimate, as the Court will not affirm a decision that is based on legal error or not 22 supported by substantial evidence. See Trevizo, 871 F.3d at 674. Thus, the regulations 23 1 require the ALJ to provide specific and legitimate reasons to reject a doctor’s opinions. 2 See also Kathleen G. v. Comm’r of Soc. Sec., No. C20-461 RSM, 2020 WL 6581012, at 3 *3 (W.D. Wash. Nov. 10, 2020) (finding the new regulations do not clearly supersede the 4 “specific and legitimate” standard because the “specific and legitimate” standard refers 5 not to how an ALJ should weigh or evaluate opinions, but rather the standard by which 6 the Court evaluates whether the ALJ has reasonably articulated his or her consideration 7 of the evidence). 8 The ALJ rejected Dr. Mashburn’s opinions based on the same medical evidence 9 analysis used to reject Plaintiff’s testimony. AR 26. That analysis fails with respect to 10 Dr. Mashburn’s opinions for largely the same reasons it failed with respect to Plaintiff’s 11 12 testimony. The mere fact that Dr. Mashburn documented some normal functioning in 13 addition to abnormal functioning does not justify rejecting his opinions. The ALJ must 14 explain why that normal functioning contradicts Dr. Mashburn’s opinions, and how it is 15 more relevant than the abnormal findings. See Garrison, 759 F.3d at 1012–13 (“[A]n 16 ALJ errs when he rejects a medical opinion or assigns it little weight while doing nothing 17 more than ignoring it, asserting without explanation that another medical opinion is more 18 persuasive, or criticizing it with boilerplate language that fails to offer a substantive basis 19 for his conclusion.”)). The ALJ did neither, and therefore erred in rejecting Dr. 20 Mashburn’s opinions. 21 C. Dr. Postovoit’s and Dr. Borton’s Opinions 22 Plaintiff contends the ALJ erred by rejecting Dr. Postovoit’s and Dr. Borton’s 23 1 opinions. Dkt. 12 at 5. Dr. Postovoit reviewed Plaintiff’s records as part of the initial 2 determination of his disability claims. AR 73–78. Dr. Postovoit opined Plaintiff should 3 be limited to occasional, superficial interaction with the public due to his history of 4 outbursts, but could have more frequent interactions with supervisors and coworkers. AR 5 77. 6 Dr. Borton reviewed Plaintiff’s records as part of the reconsideration 7 determination of his disability claims. AR 82–87. Dr. Borton opined Plaintiff was 8 moderately limited in his ability to interact appropriately with the general public, and 9 accept instructions and respond appropriately to criticism from supervisors. AR 86. Dr. 10 Borton opined Plaintiff could interact with the public on an occasional/superficial basis 11 12 due to his history of outbursts. AR 87. Dr. Borton opined Plaintiff could have frequent 13 interaction with supervisors, but noted Plaintiff “is hypersensitive to criticism and tends 14 to hold grudges for longer periods than most people.” Id. 15 The ALJ rejected these opinions because Plaintiff “spends time with friends and 16 uses public transportation, suggesting that he is not completely socially isolated.” AR 25. 17 The ALJ once again failed to adequately explain her reasoning. See Garrison, 759 F.3d 18 at 1012–13. That Plaintiff was not completely isolated does not show he could have 19 more than occasional, superficial interaction with the public, for example. The ALJ 20 therefore erred. 21 D. Scope of Remand 22 Plaintiff cursorily asks the Court to remand this matter for an award of benefits. 23 1 Dkt. 12 at 6. Except in rare circumstances, the appropriate remedy for an erroneous 2 denial of benefits is remand for further proceedings. See Leon v. Berryhill, 880 F.3d 3 1041, 1043 (9th Cir. 2017) (citing Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 4 1090, 1100 (9th Cir. 2014)). Plaintiff has not analyzed the factors the Court considers 5 before remanding for an award of benefits, nor shown any rare circumstances. The Court 6 will remand for further administrative proceedings. 7 On remand, the ALJ shall reevaluate Plaintiff’s testimony, Dr. Mashburn’s 8 opinions, Dr. Postovoit’s opinions, and Dr. Borton’s opinions. The ALJ shall reassess 9 Plaintiff’s residual functional capacity, and all relevant steps of the disability evaluation 10 process. The ALJ shall conduct all further proceedings necessary to reevaluate the 11 12 disability determination in light of this opinion. 13 CONCLUSION 14 For the foregoing reasons, the Commissioner’s final decision is REVERSED and 15 this case is REMANDED for further administrative proceedings under sentence four of 16 42 U.S.C. § 405(g). 17 DATED this 3rd day of March, 2022. 18 A 19 20 The Honorable Richard A. Jones 21 United States District Judge 22 23