United States District Court, W.D. Washington, Seattle
REPORT AND RECOMMENDATION
BRIAN A. TSUCHIDA, Magistrate Judge.
Ben Jason Patajo seeks review of the denial of his Supplemental Security Income and Disability Insurance Benefits applications. He contends the ALJ erred by discounting the medical opinions of Nichole Seymanski, Psy.D., and John Gonsoulin, M.D. Dkt. 11. As discussed below, the Court recommends the case be REVERSED and REMANDED under sentence four of 42 U.S.C. § 405(g), for further administrative proceedings.
Mr. Patajo is currently 34 years old, received his GED, and has worked as a telephone solicitor, sales representative, and laborer. Tr. 33, 49. On August 31, 2010, he applied for benefits, alleging disability as of March 3, 2007. Tr. 9. His applications were denied initially and on reconsideration. Id. The ALJ conducted a hearing on December 5, 2012, finding Mr. Patajo not disabled. Tr. 22. As the Appeals Council denied Mr. Patajo's request for review, the ALJ's decision is the Commissioner's final decision. Tr. 1-5.
THE ALJ'S DECISION
Utilizing the five-step disability evaluation process,  the ALJ found Mr. Patajo had not engaged in substantial gainful activity since the amended alleged onset date; he had severe impairments of Crohn's disease, major depressive disorder, generalized anxiety disorder, and borderline personality disorder; and these impairments did not meet or equal the requirements of a listed impairment. Tr. 9-12. The ALJ found Mr. Patajo had the residual functional capacity to perform light work but that he should have ready access to bathroom facilities, he could perform routine tasks and instructions, and he should not have public contact but could have occasional contact with coworkers without teamwork. Tr. 13-14. The ALJ found Mr. Patajo was unable to perform his past work, but could perform jobs that exist in significant numbers in the national economy. Tr. 20-22. The ALJ therefore concluded that Mr. Patajo was not disabled. Tr. 22.
A. The ALJ Erred in Evaluating Dr. Nichole Seymanski's Opinion
The parties agree that Dr. Seymanski's opinions may only be rejected if the ALJ provides specific and legitimate reasons based on substantial evidence in the record. See Dkt. 11 at 2, Dkt. 12 at 5; see also Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995). The ALJ gave little weight to Dr. Seymanski's opinion that Mr. Patajo "would likely have difficulty in attending and performing necessary work tasks, " finding that the opinion was based on a selfreport assessment and that the doctor relied heavily on Mr. Patajo's unreliable subjective complaints. See Tr. 17-20. The ALJ failed to provide a legitimate basis for concluding Dr. Seymanski adopted Mr. Patajo's statements in lieu of considering her own clinical findings.
As Mr. Patajo correctly notes, Dr. Seymanski based her opinion on the results of a Millon Clinical Multiaxial Inventory-III ("MCMI-III") assessment. Dkt. 11 at 3-4 ( citing Tr. 685-86). The Commissioner argues Dr. Seymanski's MCMI-III assessment does not invalidate the ALJ's decision because that test does not provide "objective psychological testing." Dkt. 12 at 7. The Commissioner's argument ignores the Social Security Administration's ("Administration") treatment of the assessment generally. For example, the Administration has routinely relied upon unfavorable MCMI assessment results as a means to discredit claimants. See, e.g., Hobbs v. Astrue, CV-09-351-CI, 2011 WL 940773 *6 (E.D. Wash. 2011) (MCMI-III test results suggesting malingering were "clear indicators... that Plaintiff's responses were unreliable"); see also Mohring v. Colvin, CV-13-2048, 2014 WL 2877757 *8 (N.D. Iowa 2014) (upholding ALJ decision which found MCMI-III results "demonstrated situation stressors significantly contributed to [claimant's] overall mental state"). The Administration's past treatment of MCMI assessments underscores a belief that the test has at least some objective value.
Though the Ninth Circuit has not decided the issue, the Western District of Washington and other courts have recognized MCMI assessments as valid psychological tests. See e.g., Pellinen v. Astrue, CV-11-5576-RBL-JRC, 2012 WL 3564232 (W.D. Wash. 2012) adopted by, CV-11-5576-RBL, 2012 WL 3564228 (W.D. Wash. 2012) (reversing ALJ's determination that doctor's opinions were unsupported by "objective clinical findings, " because the opinions "were supported by plaintiff's results on the Millon, which indicated that plaintiff suffered from an Avoidant Personality with co-occurring anxiety'"); Reeder v. Colvin, 13-1201-SAC, 2014 WL 4538060 *4 (D. Kan. 2014) (reversing ALJ where ALJ accorded limited weight to medical opinion based on MCMI-III, a test that "provides a measure of 24 personality disorders and clinical syndromes[ ] and assists clinicians in psychiatric diagnosis, " in favor of medical opinion based wholly on consultative examination); Farmer v. Astrue, 832 F.Supp.2d 1293, 1299 (D. Kan. 2011) (reversing ALJ because doctor relied on MCMI-III test results, despite ALJ's assertion that doctor's opinion "relied quite heavily on the claimant's subjective report of symptoms and limitations"); cf. McNertney v. Astrue, CV-10-3149-NKL, 2011 WL 2416618 (W.D. Mo. 2011) (reversing ALJ, stating "[a] validity scale is inherent in MCMI-III testing.").
In addition, the ALJ's contention that Dr. Seymanski relied on Mr. Patajo's self-reports also finds no basis in the record. The results of Mr. Patajo's MCMI-III test indicate that Mr. Patajo's "profile" "comes from the Interpretive Report from the MCMI-III results." Tr. 685 (emphasis added). There is no evidence to suggest that the doctor did nothing more than simply record or parrot back Mr. Patajo's self-reports; rather, the evaluation suggests that Mr. Patajo's raw responses were subjected to some sort of an analysis. Accordingly, substantial evidence does not support the ALJ's finding that Dr. Seymanski relied on Mr. Patajo's self-reports to the exclusion of objective findings.
The ALJ's error is not harmless because there is at least a potential likelihood that Dr. Seymanski's opinion was not factored into Mr. Patajo's RFC. During the administrative hearing, the ALJ posed a hypothetical to the Vocational Expert ("VE") mirroring the RFC in the ALJ's decision. Tr. 49. Upon questioning by Mr. Patajo's representative at the hearing, the VE clarified that employers for the jobs she posited Mr. Patajo could perform would not permit more than one absence per month. Tr. 51. The ALJ also posed a second hypothetical to the VE in which the claimant would be "unable to perform activities within a schedule." Tr. 50. In response to this hypothetical, the VE testified that with such limitations, the claimant would not be competitive for employment. Id. As Dr. Seymanski opined Mr. Patajo "would likely have difficulty in attending and performing necessary work tasks, " Tr. 686, the VE's testimony raises serious doubts as to whether the ALJ's decision remains legally valid despite his error. See Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1162-63 (9th Cir. 2008) (the relevant ...