Kenneth Smith v. Kilolo Kijakazi

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENNETH E. SMITH, No. 20-35487
Plaintiff-Appellant,
D.C. No.
v. 3:19-cv-05426-
JRC
KILOLO KIJAKAZI, Acting
Commissioner of Social Security,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the Western District of Washington
J. Richard Creatura, Chief Magistrate Judge, Presiding
Argued and Submitted September 3, 2021
Seattle, Washington
Filed October 1, 2021
Before: Michael Daly Hawkins and M. Margaret
McKeown, Circuit Judges, and Jed S. Rakoff, *
District Judge.
Opinion by Judge Rakoff
*
The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
2 SMITH V. KIJAKAZI
SUMMARY **
Social Security
The panel reversed the district court’s affirmance of a
2019 decision of an administrative law judge (“ALJ”)
denying a claimant’s application for Social Security
disability benefits.
The panel held that the ALJ’s conclusion that claimant
was not disabled at the time of the hearing was supported by
substantial evidence. The panel nonetheless reversed and
remanded to the agency for further factfinding because the
agency did not adequately consider how claimant’s
symptoms changed over time. The ALJ’s failure to consider
these changes over time impacted both her assessment of
claimant’s credibility and her analysis of the medical
opinions. Specifically, the panel held that although the ALJ
properly determined that claimant’s testimony was not
credible regarding his capacity in the later period of his
disability claim, the ALJ erred in rejecting claimant’s
testimony wholesale without explaining how her rationale
for finding the late period testimony not credible applied to
the early period testimony. In addition, the ALJ erred by
failing to consider whether the opinions of Drs. Wheeler and
Krueger were reliable evidence of claimant’s functioning in
the earlier time period and instead seeking only a single
medical opinion of claimant’s general capacity over the
entire period. The panel concluded that these errors were
harmful. The panel instructed the ALJ on remand to
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
SMITH V. KIJAKAZI 3
consider whether claimant was disabled, and therefore
entitled to benefits, for some qualifying, earlier portion of
his alleged disability period.
COUNSEL
Eitan Kassel Yanich (argued), Law Office of Eitan Kassel
Yanich PLLC, Olympia, Washington, for Plaintiff-
Appellant.
Christopher J. Brackett (argued), Special Assistant United
States Attorney; Mathew W. Pile, Regional Chief Counsel;
Kerry Jane Keefe, Assistant United States Attorney; Tessa
M. Gorman, Assistant United States Attorney; Office of the
General Counsel, Region X, Social Security Administration,
Seattle, Washington; for Defendant-Appellee.
OPINION
RAKOFF, District Judge:
Plaintiff Kenneth E. Smith appeals the district court’s
affirmance of the 2019 decision of an administrative law
judge (ALJ) denying his application for Social Security
disability benefits. The ALJ’s conclusion that Smith was not
disabled at the time of the hearing was supported by
substantial evidence. But the court nonetheless reverses and
remands this case to the agency for further factfinding, since
the ALJ did not adequately consider how Smith’s symptoms
changed over time. The ALJ’s failure to consider these
changes over time impacted both her assessment of Smith’s
credibility and her analysis of the medical opinions. As
explained further below, the ALJ shall consider on remand
4 SMITH V. KIJAKAZI
whether Smith was disabled, and therefore entitled to
benefits, for some qualifying, earlier portion of his alleged
disability period.
Factual Background 1
Smith filed applications for Disability Insurance
Benefits (DIB) and Supplemental Security Income (SSI)
benefits in July 2013, alleging (as amended) that he became
disabled on December 1, 2012 and has been unable to work
since then, due to mental health problems triggered by an
acute grief reaction to the deaths of his fiancée, mother, and
grandmother during a two-month period in fall 2012. In
2013, Smith stated he could not concentrate for more than
fifteen minutes at a time, he heard voices, he had problems
with memory and concentration, and he did not respond well
to stress. However, the record reflects that the intensity of
Smith’s symptoms varied substantially during the years
following his alleged onset date and dramatically improved
during the later years of the claimed disability period. 2
1
The Court assumes the parties’ familiarity with the factual and
procedural background of this case and so sets forth only those details
necessary to decide this appeal. Unless otherwise specified, all quotation
marks, omissions, citations, emphases, and alterations have been omitted
from all sources cited herein.
2
The record before the ALJ included medical records and medical
expert testimony, Smith’s own testimony, a lay witness statement from
Smith’s sister, and expert testimony from a vocational rehabilitation
counselor. The ALJ’s decision to accord less than full credit to Smith’s
sister’s statement was supported by substantial evidence, because the
ALJ gave multiple germane, well-supported reasons for discounting
Smith’s sister’s statements. See Molina v. Astrue, 674 F.3d 1104, 1113–
14 (9th Cir. 2012), superseded by regulation on other grounds.
SMITH V. KIJAKAZI 5
The ALJ concluded in 2019 that Smith had the severe
impairments of major depressive disorder with psychosis,
generalized anxiety disorder, and dysthymia. Nevertheless,
she concluded that Smith has the residual functional capacity
to perform a full range of work at all exertional levels, except
“he is capable of performing tasks that require GED
reasoning level of 2 or less,” with “a stable routine,” “no
more than incidental public contact,” and no “teamwork
assignments.” Therefore, the ALJ held that Smith was not
disabled and denied his claim.
Discussion
We review the district court’s order affirming the ALJ’s
denial of social security benefits de novo, Tommasetti v.
Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008), and reverse
only if the ALJ’s decision was not supported by substantial
evidence in the record as a whole or if the ALJ applied the
wrong legal standard, Stone v. Heckler, 761 F.2d 530, 531
(9th Cir. 1985). “Substantial evidence means such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion. The evidence must be more than a
mere scintilla, but may be less than a preponderance.”
Molina v. Astrue, 674 F.3d 1104, 1110–11 (9th Cir. 2012),
superseded by regulation on other grounds. And even where
this modest burden is not met, we will not reverse an ALJ’s
decision where the error was harmless. See id. at 1111.
While Smith raises a number of issues on appeal, the
court addresses only those relevant to its decision to remand
the case to the agency: the ALJ’s rejection of Smith’s
testimony and her analysis of the medical opinion evidence.
6 SMITH V. KIJAKAZI
I. Smith’s Testimony
Smith testified at the 2018 hearing, describing his
symptoms as of that time, including in response to the ALJ’s
questions. The ALJ ultimately discounted Smith’s testimony
as not credible, concluding that it was inconsistent with the
medical evidence. But that conclusion rested on the ALJ’s
assessment of Smith’s testimony regarding his functioning
at the time of the hearing, and she did not analyze Smith’s
testimony regarding his capacities in past years. This was
error.
“An ALJ engages in a two-step analysis to determine
whether a claimant’s testimony regarding subjective pain or
symptoms is credible. First, the ALJ must determine whether
the claimant has presented objective medical evidence of an
underlying impairment which could reasonably be expected
to produce the pain or other symptoms alleged.” Garrison v.
Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). At this step, the
medical evidence need not corroborate the severity of the
alleged symptoms; the medical evidence need only establish
that the impairment could reasonably be expected to cause
some degree of the alleged symptoms. Lingenfelter v.
Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). Then, provided
“there is no evidence of malingering, the ALJ can reject the
claimant’s testimony about the severity of her symptoms
only by offering specific, clear and convincing reasons for
doing so.” Garrison, 759 F.3d at 1014–1015.
The parties do not dispute that Smith presented medical
evidence of an underlying impairment that could have
caused some degree of the symptoms Smith has alleged. Nor
does the Government assert that Smith is malingering.
Therefore, the “ALJ [could] reject [Smith’s] testimony about
the severity of [his] symptoms only by offering specific,
clear and convincing reasons for doing so.” Id. This standard
SMITH V. KIJAKAZI 7
is “the most demanding required in Social Security cases.”
Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924
(9th Cir. 2002). This court has set forth the specific finding
required:
[A]n ALJ does not provide specific, clear,
and convincing reasons for rejecting a
claimant's testimony by simply reciting the
medical evidence in support of his or her
residual functional capacity determination.
To ensure that our review of the ALJ’s
credibility determination is meaningful, and
that the claimant's testimony is not rejected
arbitrarily, we require the ALJ to specify
which testimony she finds not credible, and
then provide clear and convincing reasons,
supported by evidence in the record, to
support that credibility determination.
Brown-Hunter v. Colvin, 806 F.3d 487, 489 (9th Cir. 2015).
Here, the ALJ clearly did more than simply recite
medical evidence. The ALJ’s discussion of Smith’s
symptoms runs for over six pages and synthesizes evidence
from multiple clinical sources. This discussion identified
what the ALJ perceived as inconsistencies between the
medical evidence and Smith’s testimony about his current
capabilities. The ALJ also discounted Smith’s testimony that
his mental health condition was responsible for his inability
to work.
But the ALJ’s analysis is not clear and convincing in
every respect. The ALJ discredited Smith’s testimony as a
whole, but her decision does not sufficiently consider the
duration of, or chronological fluctuation in, Smith’s
8 SMITH V. KIJAKAZI
symptoms. Before this court, Smith calls the ALJ’s approach
to the record of Smith’s treatment “selective.” Cf. Garrison,
759 F.3d at 1017 (holding that in mental health disability
cases “it is error to reject a claimant’s testimony merely
because symptoms wax and wane in the course of
treatment”). But the issue is not that the ALJ selected the
least favorable findings from a record reflecting relatively
consistent symptomatology. The record of Smith’s case
indicates that his symptoms varied, and generally improved,
during the years following his onset date:
• From late 2012, when Smith suffered the losses
of his loved ones, through October 2015, Smith’s
symptoms were quite severe. During this period,
he testified, “I didn’t want to do nothing, didn’t
want to go nowhere, didn’t want to leave the
house, sat on the couch.”
• In January 2015, at his hearing before the first
ALJ, Smith testified that he had significant
problems with concentration, sleeping, and
engaging in the activities of daily life.
• From January 2015 through December 2017,
Smith volunteered a few hours a month with the
fire department.
• From the middle of 2017 through roughly the end
of June 2018, Smith was looking for work. He
may have again been looking for work as of the
date of his hearing, July 25, 2018.
The ALJ’s decision does not adequately address this
progression as it relates to Smith’s credibility.
SMITH V. KIJAKAZI 9
Notwithstanding the significant variation in Smith’s
symptom severity over time, the ALJ’s questions about his
symptoms had to do only with those he was experiencing as
of the time of the hearing (e.g., “Do you have sleepiness
during the day?”, “[A]re you currently living with someone
or living alone?”, “Do you do this on a regular basis?”).
None of the ALJ’s questions concerned Smith’s symptoms
during the early period of his alleged disability. The
questions also related to Smith’s occasional volunteer work
with the fire department, which occurred after 2015. The
only inquiry during the ALJ’s questioning that addressed the
first years of the disability claim immediately following the
acute grief reaction was whether Smith had “been looking
for work this entire time you’ve alleged your disabled?”
Smith answered “Not the whole time. I have been currently
though.”
Smith’s attorney later questioned him about the period
immediately following his family members’ deaths, and
Smith reported more serious incapacitation. This testimony
regarding the early period of his claim was not inconsistent
with the early-period assessments of two examining
psychologists—Dr. Wheeler and Dr. Krueger. Though the
ALJ permissibly discounted their medical opinions as
unrepresentative of Smith’s full-period capabilities, the
ALJ’s own findings still permit the conclusion that this
record evidence corroborates the portion of Smith’s
testimony relating to his early-period disability.
Likewise, as discussed further below, few of the ALJ’s
questions to the testifying medical expert, Dr. Layton,
distinguished clearly between various periods of time. Many
of the treatment records to which Dr. Layton pointed
concerned 2015 and 2017. As Smith’s counsel put it at the
hearing, “those all appear to be very recent.” Dr. Layton also
10 SMITH V. KIJAKAZI
acknowledged that the record did not enable him to
determine how long Smith suffered a disabling grief reaction
in response to his family losses.
The ALJ therefore erred by disregarding all of Smith’s
testimony, including the portion about his early-period
incapacity, on the basis of inconsistencies only clearly
applicable to the late-period testimony. This reasoning fails
to comply with our holding in Brown-Hunter, that a
claimant’s testimony regarding the severity of subjective
symptoms can only be disregarded when the ALJ
“specif[ies] which testimony she finds not credible, and then
provide[s] clear and convincing reasons, supported by
evidence in the record, to support that credibility
determination.” 806 F.3d at 489. In other words, to reject the
specific portions of the claimant’s testimony that the ALJ
has found not to be credible, we require that the ALJ provide
clear and convincing reasons relevant to that portion. See
Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001)
(“[T]he ALJ must specifically identify the testimony she or
he finds not to be credible and must explain what evidence
undermines the testimony.”). We therefore hold that the ALJ
erroneously rejected Smith’s early-period testimony, since
the ALJ provided no specific, clear, and convincing reasons
to find this portion of Smith’s testimony not credible.
The Commissioner argues that the ALJ found Smith’s
testimony less than credible because it contained
inconsistencies, and because Smith’s improvement with
medication was inconsistent with his claimed disability. But
this bolsters rather than cuts against the objection that
Smith’s testimony could not be discredited as a whole
because of changes over time or inconsistencies relevant
only to portions of testimony describing a certain period. The
record evidence reflects that, over time, Smith moved from
SMITH V. KIJAKAZI 11
a state where he appears to have been unable to engage in
meaningful work to a state in which he was significantly less
hindered. Therefore, it may be that Smith was disabled for a
qualifying portion of the time from his alleged onset date,
even if not for the full period.
As Smith argues, during the worst period of his
symptoms, record evidence concerning Smith’s daily
activities neither contradicts his testimony nor meets the
threshold for full-time work, the two grounds we have
recognized for using daily activities to form a basis of an
adverse credibility determination. See Orn v. Astrue,
495 F.3d 625, 639 (9th Cir. 2007). The ALJ made no clear
and convincing findings regarding either point, so Smith’s
testimony about his daily activities does not justify an
adverse credibility determination as to his early-period
testimony. Likewise, Smith’s improvement with medication
does not necessarily mean he did not experience disabling
symptoms prior to receiving appropriate medication or that
he could work before his symptoms stabilized.
We therefore hold that, although the ALJ properly
determined that Smith’s testimony was not credible
regarding his capacity in the later period of his disability
claim, the ALJ erred in rejecting Smith’s testimony
wholesale without explaining how her rationale for finding
the late-period testimony not credible applied to the early-
period testimony.
II. Medical Opinions
The ALJ also erred in her assessment of the medical
opinion evidence, because she did not adequately consider
the progression of Smith’s symptoms over time in making
her credibility determinations. An ALJ must evaluate every
medical opinion in the record. See 20 C.F.R. § 404.1527(c).
12 SMITH V. KIJAKAZI
“There are three types of medical opinions in social security
cases: those from treating physicians, examining physicians,
and non-examining physicians. Where a treating or
examining physician’s opinion is contradicted by another
doctor, the Commissioner must determine credibility and
resolve the conflict.” Valentine v. Comm’r Soc. Sec. Admin.,
574 F.3d 685, 692 (9th Cir. 2009). “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.” Bayliss v. Barnhart, 427 F.3d 1211,
1216 (9th Cir. 2005). 3
Between 2012 and the hearing in 2018, Smith underwent
numerous psychological examinations and received mental
health treatment from several providers. The ALJ considered
the opinions in the record and focused on those from three
key medical experts:
• Dr. Kimberly Wheeler of the Washington State
Department of Social and Health Services,
examined Smith twice (on December 20, 2012
and June 29, 2017), and diagnosed him with
major depression, recurrent, severe with possible
psychotic symptoms, as well as with
bereavement. She found several symptoms
affecting Smith’s ability to work, as well as his
mood, speech, appetite, sleep, and loss of interest
in usual activities. She concluded that he was
3
Smith’s claim was filed prior to the Commissioner’s revision of
the rules for evaluating medical evidence at the administrative level. See
Revisions to Rules Regarding the Evaluation of Medical Evidence,
82 Fed. Reg 5844, 5844 (Jan. 18, 2017) (codified at 20 C.F.R.
§ 404.1520c(a)).
SMITH V. KIJAKAZI 13
severely limited in his ability to complete a
normal workday or workweek without
interruption from psychologically based
symptoms, markedly limited in his ability to
maintain appropriate behavior in a work setting,
and moderately limited in his ability to complete
work tasks.
• Dr. Keith Krueger of Washington State
Department of Social and Health Services,
examined Smith twice (on July 23, 2013 and
November 4, 2014), and diagnosed Smith with
major depression, recurrent, with psychotic
features. He found that Smith was experiencing
various symptoms affecting his ability to work.
According to Dr. Krueger, Smith reported he was
having both visual and auditory hallucinations of
his late mother and fiancée, was sleeping only
four hours at a time with sleeping pills, and was
taking a couple of one-hour naps during the day.
Dr. Krueger also concluded that Smith had a
severe limitation in completing a normal
workday or workweek without interruptions, as
well as a marked limitation in communicating
and performing effectively in a work setting.
• Dr. Kent Layton, a clinical psychologist
reviewed Smith’s record and testified at the
request of the Social Security Administration.
Dr. Layton agreed that there was sufficient
clinical evidence in the record to support the
diagnoses of major depressive disorder with
psychotic features, anxiety, and dysthymia. He
further testified that none of the conditions
constituted a listed impairment but that they did
14 SMITH V. KIJAKAZI
impose limitations on Smith’s functioning. Still,
Layton’s opinion was that Smith could perform
simple, repetitive, routine tasks or complex,
routine, well-learned tasks. And although he
might have occasional trouble with supervisors
and could not be assigned to duties involving
teamwork, he could handle incidental contact
with the general public. Regarding the opinions
of Drs. Wheeler and Krueger, Dr. Layton opined
that they were overly influenced by Smith’s grief
at the loss of his loved ones, since the
examinations followed close in time.
Only Dr. Layton testified.
The ALJ ultimately assigned “little weight” to
Dr. Wheeler’s opinion and “limited weight” to Dr. Krueger’s
opinion, relying instead on Dr. Layton’s testimony, which
was inconsistent with the opinions provided by the other two
doctors. The ALJ reasoned that the opinions of Drs. Wheeler
and Krueger were entitled to less weight because they had
examined Smith relatively soon after the death of his loved
ones, because they did not specifically describe Smith’s
levels of functioning, and because they had not reviewed the
full record of Smith’s treatment. The ALJ explained she
relied on Dr. Layton because he had reviewed the entire
record and because she found his testimony consistent with
Smith’s “demonstrated functioning.” In short, the ALJ
determined that Dr. Layton’s opinion was more reliable as a
statement of Smith’s capacity over the alleged disability
period as a whole.
But we have previously observed that in many mental
health conditions, “[c]ycles of improvement and debilitating
symptoms are a common occurrence.” Garrison, 759 F.3d
at 1017. We therefore held that “in such circumstances it is
SMITH V. KIJAKAZI 15
error for an ALJ to pick out a few isolated instances of
improvement . . . and to treat them as a basis for concluding
a claimant is capable of working.” Id. Physician reports of
“improvement” are thus not “sufficient to undermine the
repeated diagnosis of [the alleged mental health] conditions”
in an earlier physician’s report or render the earlier medical
opinions “inconsistent” and so not credible. Ryan v. Comm’r
of Soc. Sec., 528 F.3d 1194, 1200–1201 (9th Cir. 2008).
The ALJ in this case erred in discrediting the opinions of
Drs. Wheeler and Krueger for the same reasons: the later
improvement highlighted by Dr. Layton, who reviewed
more than five years of Smith treatment records but never
himself examined Smith, does not render the earlier medical
opinions unreliable because they report more severe
symptoms. 4 Nor was it appropriate to discredit the opinions
of Drs. Wheeler and Krueger because their examinations
occurred only “very shortly after” or “seven months after”
the deaths of Smith’s loved ones. While that timing may
render the opinions unreliable as a statement of Smith’s
condition generally during the whole five-year period
covered by the claim, it is not a valid reason to discredit the
examining psychologists’ opinions as evidence of Smith’s
functioning during the earlier period. The ALJ therefore
erred by failing to consider whether the opinions of
Drs. Wheeler and Krueger were reliable evidence of Smith’s
functioning in that earlier period and instead seeking only a
single medical opinion of Smith’s general capacity over the
entire period.
4
The ALJ also credited the written opinions of two other non-
examining state psychological consultants for the same reason she
credited Dr. Layton’s opinion: that they had reviewed medical records
from multiple providers.
16 SMITH V. KIJAKAZI
Conclusion
The ALJ undertook a careful consideration of Smith’s
disability claim and a detailed analysis of the record. But the
ALJ nonetheless erred by seeking only to reach a single
disability determination for the entire multi-year period,
thereby failing to consider whether Smith was disabled for
only a qualifying, early portion of that time. This error
affected both the ALJ’s assessment of Smith’s testimony and
her analysis of the examining psychologists’ medical
opinions. The court further concludes that these errors were
harmful: the ALJ’s decision to discredit the early-period
evidence and not to separately consider whether Smith was
disabled for a portion of the alleged period was material to
her residual functional capacity finding and thus to her
ultimate disability determination.
Therefore, the court remands this case to the agency for
further proceedings consistent with this Opinion.
REVERSED AND REMANDED.