Michael Nygren v. Andrew Saul

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 4 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL C. NYGREN, No. 20-35039
Plaintiff-Appellant, D.C. No. 3:19-cv-05005-MAT
v.
MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Mary Alice Theiler, Magistrate Judge, Presiding
Argued and Submitted March 16, 2021
San Francisco, California
Before: BERZON, MURGUIA, and CHRISTEN, Circuit Judges.
Partial Dissent by Judge CHRISTEN
Plaintiff Michael Nygren appeals the district court’s order affirming the
Commissioner of Social Security’s decision denying Nygren’s application for
Supplemental Security Income. We review de novo and set aside a denial of benefits
if it is unsupported by substantial evidence or the administrative law judge (“ALJ”)
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
committed legal error. Ford v. Saul, 950 F.3d 1141, 1153–54 (9th Cir. 2020). We
have jurisdiction pursuant to 28 U.S.C. § 1291 and we reverse and remand. Because
the parties are familiar with the facts, we recount them only as necessary to resolve
the arguments on appeal.
Nygren contends that the ALJ failed to properly evaluate the medical
evidence. First, Nygren argues the ALJ committed reversible error in failing to
discuss the opinion of Dr. Erum Quadeer, his treating physician, regarding the
limitations triggered by his ankle injury. If an ALJ overlooks a medical opinion, we
must consider whether this error was harmless. Marsh v. Colvin, 792 F.3d 1170,
1172 (9th Cir. 2015). Although Dr. Quadeer initially opined that Nygren has a set
of specific limitations, she explicitly opined that those limitations would last for
approximately four months. Because a disabling impairment must last or be
expected to last at least twelve months, the Commissioner argues that the ALJ’s
failure to discuss Dr. Quadeer’s opinion was harmless. We disagree. Although Dr.
Quadeer initially limited Nygren to four months of modified work duty, she
subsequently diagnosed Nygren with synovitis, degenerative joint disease, nerve
entrapment, tasrsal tunnel syndrome, and tendonitis. “[A]n ALJ cannot in its
decision totally ignore a treating doctor and his or her notes, without even
mentioning them.” Id. at 1172–73. Because the ALJ did so here, we cannot
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“confidently conclude” that the ALJ’s error was harmless. Id. at 1173 (citation
omitted).
Next, Nygren argues that the ALJ improperly rejected the opinion of Dr.
Michael Dujela, a treating podiatrist. The ALJ in some respects gave “little weight”
to Dr. Dujela’s statements because “[h]is assessment of [Nygren’s] functioning is
inconsistent with the objective medical evidence in this case.” An ALJ may reject a
treating physician’s opinion only “by providing specific and legitimate reasons that
are supported by substantial evidence.” Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194,
1198 (9th Cir. 2008) (citation omitted). The ALJ explained that while “some of [Dr.
Dujela’s] outlined limitations are accommodated in the residual functional capacity
above, other [sic] are clearly inconsistent with the medical record, including
restrictions on fine and gross manipulation, which fall outside Dr. Dujela’s medical
expertise as a podiatrist.” The ALJ highlighted specific contrary medical evidence,
such as nerve conduction studies and a normal EMG of Nygren’s lower extremities
that led other physicians to conclude that Nygren’s diagnosis of “complex regional
pain syndrome was not supported.” These are “specific and legitimate reasons” to
discount Dr. Dujela’s opinions. Ryan, 528 F.3d at 1198 (citation omitted).
What is more, Dr. Dujela’s limitations were for the most part accounted for in
the ALJ’s residual functional capacity (“RFC”) finding. Dr. Dujela indicated that
Nygren could stand and walk between one to three hours each workday and that he
3
could sit throughout the workday. The ALJ’s RFC finding largely reflected Dr.
Dujela’s opinion, indicating that Nygren could “stand and/or walk up to two hours
in an eight-hour workday, and sit about six hours in an eight-hour workday.” Any
error was thus harmless because Dr. Dujela’s primary limitations were accounted
for in the RFC. See Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (holding
that an error is harmless if it is “inconsequential to the ultimate nondisability
determination”) (internal quotation marks and citation omitted).
Nygren also argues that the ALJ failed to properly evaluate the opinion of Dr.
Amir Atabeygi, a treating physician. Nygren contends that the “ALJ does not
acknowledge Dr. Atabeygi’s discussion of why he prescribed a four-wheel walker
to Nygren.” But the ALJ did discuss the prescription of a four-wheel walker, finding
that it did not reflect Nygren’s true limitations. In any event, an ALJ need not
address every single note or observation about a claimant’s condition. Howard ex
rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003).
However, the ALJ did not discuss Dr. Atabeygi’s clinical findings on
Nygren’s severe hip pain, including Nygren’s diagnoses of bursitis of the right hip
and IT band syndrome. Dr. Atabeygi also indicated agreement with Dr. Dujela’s
complex regional pain syndrome (“CRPS”) diagnosis, based on Dr. Atabeygi’s
reading of Nygren’s bone scan. It appears that the ALJ entirely ignored these
opinions, which is reversible error. Marsh, 792 F.3d at 1172–73. The dissent would
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hold that this error was harmless. We respectfully disagree, because “an ALJ cannot
in its decision totally ignore a treating doctor and his or her notes, without even
mentioning them.” Id. So even though the ALJ discussed Nygren’s four-wheel
walker prescription, we cannot “confidently conclude” that the ALJ’s failure to
mention Dr. Atabeygi’s clinical findings was harmless. Id. at 1173 (citation
omitted).
Finally, Nygren argues that the ALJ improperly rejected Dr. William
Wilkinson’s opinion. Dr. Wilkinson diagnosed Nygren in 2017 with major recurrent
depression and unspecified anxiety disorder. Dr. Wilkinson described Nygren as
having various mild to moderate limitations, but he also opined that Nygren would
have marked limitations in performing activities within a schedule, in adapting to
changes and maintaining appropriate behavior in a work setting, and in completing
a normal workday or workweek without interruption.
The ALJ gave “some weight” to Dr. Wilkinson’s opinion and explained that
it is “generally consistent with the longitudinal treatment record and the claimant’s
limited treatment history,” but stated that Nygren’s “presentation to Dr. Wilkinson
was not consistent with his presentation throughout the record” and that Dr.
Wilkinson’s opinions that Nygren had marked limitations “appear to be largely
based on [Nygren’s] self-report of symptoms, which are not wholly consistent with
the evidence of record.”
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To the extent that the ALJ discredited Dr. Wilkinson’s opinion because it was
based on Nygren’s self-report, that is a reversible error.1 We have made clear that,
in the context of mental health evidence, a clinical interview and mental health
evaluation “are objective measures and cannot be discounted as a ‘self-report.’”
Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017). “Diagnoses will always
depend in part on the patient’s self-report, as well as on the clinician’s observations
of the patient. But such is the nature of psychiatry.” Id. In the context of mental
health evaluations, a physician’s reliance on self-reported symptoms is thus not a
legitimate reason to reject a physician’s opinion. Id.The ALJ noted that Nygren’s “presentation to Dr. Wilkinson was not
consistent with his presentation throughout the record,” but failed to specify other
instances in the record that undermined Dr. Wilkinson’s conclusions. The
Commissioner points to the ALJ’s decision to give “great weight” to Dr. Rogers’s
psychological evaluation, which the ALJ discussed in the preceding paragraph
before the discussion about Dr. Wilkinson’s findings. “If a treating or examining
doctor’s opinion is contradicted by another doctor’s opinion, an ALJ may only reject
it by providing specific and legitimate reasons that are supported by substantial
evidence.” Ryan, 528 F.3d at 1198 (citation omitted). Although the dissent is correct
1
The dissent would instead read the ALJ’s conclusion on Dr. Wilkinson to
mean that Nygren’s own self-reports throughout the record were inconsistent. We
respectfully disagree with this interpretation.
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that Nygren reported to Dr. Loyer that he had experienced some improvement in his
mood, the ALJ did not mention Dr. Loyer and failed to provide specific reasons for
discounting Dr. Wilkinson’s opinion. “This can be done by setting out a detailed
and thorough summary of the facts and conflicting clinical evidence, stating [the
ALJ’s] interpretation thereof, and making findings.” Reddick v. Chater, 157 F.3d
715, 725 (9th Cir. 1998). On remand, the ALJ must specifically consider conflicting
opinions together with any other relevant evidence, and, if the ALJ continues to give
the opinion only “some weight,” must provide “specific and legitimate” reasons for
doing so. Id.The ALJ’s rejection of Nygren’s subjective symptom testimony and of his
fiancée’s supporting testimony rested in large part on the ALJ’s evaluation of the
medical evidence. As we find that evaluation inadequate, we do not address the
credibility findings independently.
We reverse and remand to the district court with instructions to remand this
case to the ALJ for further findings consistent with this decision. Specifically, the
ALJ should consider the opinions of Dr. Quadeer and Dr. Atabeygi, reevaluate
whether Dr. Wilkinson’s opinions should be assigned greater weight, and revisit the
credibility issues in light of any revisions in the evaluation of the medical evidence.
See Marsh, 792 F.3d at 1173.
REVERSED and REMANDED.
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FILED
Nygren v. Saul, No. 20-35039
MAY 4 2021
CHRISTEN, Circuit Judge, partially dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I agree with the result reached by the majority, but I write separately to
address two points on which I disagree.
1. I would hold that the ALJ’s failure to specifically mention Dr.
Atabeygi’s diagnosis of complex regional pain syndrome (CRPS) was harmless
error. The ALJ considered whether the medical evidence supported the CRPS
diagnosis, noted that Drs. Mark Holmes, Alfred Blue, and Terry Felts all agreed
that Nygren did not have CRPS, and acknowledged that “there is[] a dispute in the
record between physicians as to whether the claimant has complex regional pain
syndrome.” Dr. Atabeygi’s diagnosis of hip pain and IT band syndrome was
adequately accounted for by the RFC, which stated that Nygren can “sit about six
hours in an eight hour work day” and is “unable to operate foot controls with the
left lower extremity.” The majority concludes the ALJ’s failure to specifically
discuss each limitation noted by Dr. Dujela is harmless error because “the ALJ’s
RFC finding largely reflected Dr. Dujela’s opinion.” Maj. Memo. at 4. I would
reach the same conclusion with respect to Dr. Atabeygi’s clinical findings.
2. I would also hold that the ALJ’s evaluation of Dr. Wilkinson’s
opinion was not error. The majority relies on Buck v. Berryhill, 869 F.3d 1040,
1049 (9th Cir. 2017), to conclude that the ALJ improperly discounted Dr.
Wilkinson’s opinion because it relied on Nygren’s self report. Maj. Memo at 6. In
Buck, we held that a clinical interview and mental health evaluation “are objective
measures and cannot be discounted as a ‘self-report’” because mental health
diagnoses will always depend in part on the patient’s self-report. Id. The ALJ
gave “some weight” to Dr. Wilkinson’s opinion but concluded “the claimant’s
presentation to Dr. Wilkinson was not consistent with [Nygren’s] presentation
throughout the record.” In other words, Nygren’s own self reports were
inconsistent, and the ALJ discounted Dr. Wilkinson’s testimony because Nygren
described his symptoms differently to Dr. Wilkinson than he had to other care
providers.
The majority concludes that the ALJ “failed to specify other instances in the
record that undermined Dr. Wilkinson’s conclusions.” Maj. Memo. at 6. But as
the ALJ noted, the evidence strongly suggests “[Nygren’s] mental health
impairments are not as severe as he has alleged.” Nygren’s own testimony at the
hearing established that he felt his depression and anxiety were well controlled by
medication. This testimony was supported by record evidence from a mental
health evaluation with Dr. Loyer in September 2017, a month after Nygren saw Dr.
Wilkinson. Nygren reported to Dr. Loyer that he had experienced a significant
improvement in his mental health after a change in his pain medication. Dr.
Loyer’s assessment after one session was that Nygren “[h]as had a great time with
his children and wife this past couple weeks and is very happy about that and
appreciative. Gaining insight.”
In all other respects, I agree with the majority.