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Penoza v. Berryhill

United States District Court, W.D. Washington, Seattle

April 28, 2017

KAREN PENOZA, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1]Defendant.

          ORDER REVERSING AND REMANDING CASE FOR FURTHER ADMINISTRATIVE PROCEEDINGS

          Honorable Richard A. Jones United States District Judge.

         Karen Penoza appeals the Administrative Law Judge's (ALJ's) decision finding her not disabled. Ms. Penoza contends the ALJ erred in: (1) finding she did not have a medically determinable physical impairment; (2) evaluating the opinions of Richard Coder, Ph.D., Matthew Comrie, Psy.D., and Cynthia Collingwood, Ph.D.; (3) improperly discounting her General Assessment of Functioning (GAF) score; (4) evaluating the credibility of her symptom testimony; (5) evaluating the severity of her medically determinable mental impairment; and, (6) engaging in a pattern or practice of biased decision making affecting the ALJ's decision regarding Ms. Penoza and persons like her. Dkt. 22 at 2. As discussed below, the Court REVERSES the Commissioner's final decision and REMANDS the matter for further administrative proceedings.

         BACKGROUND

         Ms. Penoza's application(s) for benefits alleging disability commencing on January 31, 2011, were denied initially and on reconsideration.[2] Tr. 13. The ALJ conducted a hearing on December 9, 2013, and thereafter issued a decision finding Ms. Penoza not disabled and denying benefits. Tr. 13-24.

         THE ALJ'S DECISION

         Utilizing the five-step disability evaluation process, [3] the ALJ found:

Step one: Ms. Penoza has not engaged in substantial gainful activity since January 31, 2011, the alleged onset date.
Step two: Ms. Penoza has a medically determinable impairment of generalized anxiety disorder. However, Ms. Penoza does not have an impairment or combination of impairments that has significantly limited (or is expected to significantly limit) the ability to perform basic work-related activities for 12 consecutive months. Therefore, Ms. Penoza does not have a severe impairment or combination of impairments. Accordingly, Ms. Penoza is not disabled.

Tr. 18. Because the ALJ found Ms. Penoza not disabled at step two, she did not reach subsequent steps in the sequential evaluation process. See 20 C.F.R. § 404.1520(a)(4)(ii). The Appeals Council denied Ms. Penoza's request for review making the ALJ's decision the Commissioner's final decision. Tr. 1-7.[4]

         DISCUSSION

         A. The ALJ's Evaluation of the Medical Evidence

         In general, more weight should be given to the opinion of a treating physician than to a non-treating physician, and more weight to the opinion of an examining physician than to a nonexamining physician. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). Where a treating or examining doctor's opinion is not contradicted by another doctor, it may be rejected only for clear and convincing reasons. Id. Where contradicted, a treating or examining physician's opinion may not be rejected without “specific and legitimate reasons supported by substantial evidence in the record for so doing.” Id. at 830-31. “An ALJ can satisfy the ‘substantial evidence' requirement by ‘setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings.'” Garrison v. Colvin, 759 F.3d 995, 1011 (9th Cir. 2014) (quoting Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)). “The Commissioner may reject the opinion of a non-examining physician by reference to specific evidence in the medical record.” Sousa v. Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998).

         At step two of the sequential evaluation, the Commissioner must determine “whether the claimant has a medically severe impairment or combination of impairments.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996); 20 C.F.R. § 404.1520(a)(4)(ii). The claimant has the burden to show that (1) she has a medically determinable physical or mental impairment, and (2) the medically determinable impairment is severe. See Bowen v. Yuckert, 482 U.S. 137, 146 (1987). A “‘physical or mental impairment' is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D); 20 C.F.R. § 404.1521. Thus, a medically determinable impairment must be established by objective medical evidence from an acceptable medical source. 20 C.F.R. § 404.1521. “‘Regardless of how many symptoms an individual alleges, or how genuine the individual's complaints may appear to be, the existence of a medically determinable physical or mental impairment cannot be established in the absence of objective medical abnormalities; i.e., medical signs and laboratory findings[.]'” Ukolov v. Barnhart, 420 F.3d 1002, 1005 (9th Cir. 2005) (quoting SSR 96-4p); 20 C.F.R. 404.1502(f) (“Objective medical evidence means signs, laboratory findings, or both”). “Signs means one or more anatomical, physiological, or psychological abnormalities that can be observed, apart from [a claimant's] statements (symptoms). Signs must be shown by medically acceptable clinical diagnostic techniques.” 20 C.F.R. § 404.1502(g).

         In addition to producing evidence of a medically determinable physical or mental impairment, the claimant bears the burden at step two of establishing that the impairment or impairments is “severe.” See Bowen, 482 U.S. at 146. An impairment or combination of impairments is severe if it significantly limits the claimant's physical or mental ability to do basic work activities. 20 C.F.R. §§ 404.1520(c), 404.1521(a). “The step two inquiry is a de minimus screening device to dispose of groundless claims.” Smolen, 80 F.3d at 1290. An impairment or combination of impairments may be found “‘not severe' only if the evidence establishes a slight abnormality that has ‘no more than a minimal effect on an individual's ability to work.'” Id. (citing Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988)). However, the claimant has the burden of proving his “impairments or their symptoms affect his ability to perform basic work activities.” Edlund v. Massanari, 253 F.3d 1152, 1159-60 (9th Cir. 2001).

         1. Finding No Medically Determinable Physical Impairment

         Ms. Penoza contends the ALJ erred in finding she had no medically determinable physical impairment at step two. Dkt. 22 at 7-9. Specifically, she contends the ALJ erred in failing to find psoriatic arthritis and spondylitis to be medically determinable impairments. Id. Ms. Penoza contends the ALJ erred in evaluating the opinion of Paul B. Brown, M.D., Ph.D., which, she argues, establishes psoriatic arthritis and spondylitis as medically determinable impairments. Id. The Court agrees the ALJ erred in evaluating these impairments at step two.

         Dr. Brown is Ms. Penoza's treating rhematologist. Tr. 2240. Dr. Brown indicated he had been treating Ms. Penoza for over ten years for the conditions of psoriatic arthritis and spondylitis. Id. In January 2013, Dr. Brown completed a physical functional evaluation form supplied by Washington State Department of Social and Health Services (DSHS) for the purpose of evaluating eligibility for public assistance. Tr. 2228. In that form Dr. Brown indicated diagnoses of psoriatic arthritis, ankylosing spondylitis, low back pain and osteoarthritis. Tr. 2229. Dr. Brown indicated that these impairments cause marked and severe impairments in the areas of sitting, standing, walking, lifting, carrying, handling, pushing, pulling, reaching, stooping and crouching. Id. Dr. Brown indicated that Ms. Penoza should perform no repetitive tasks, no prolonged sitting, standing, walking, no heavy lifting or carrying, no reaching, pushing, pulling, no bending, kneeling, squatting, twisting or climbing. Id. Dr. Brown indicated that, in terms of “work level”, Ms. Penoza was “severely limited”, meaning she was “unable to meet the demands of sedentary work.” Tr. 2230.

         The ALJ gave “little weight” to Dr. Brown's opinions that Ms. Penoza was unable to meet the demands of even sedentary work due to psoriatic arthritis, ankylosing spondylitis, low back pain and osteoarthritis for the following reasons: the assessment was inconsistent with the longitudinal treatment history and performance on physical examinations; there are no x-rays, CT scans, MRIs, or bone scans to support Dr. Brown's opinions; the only physical examination in the record was normal and the claimant's sedimentation rate and C-reactive protein labs were normal; and, Dr. Brown's treatment records do not substantiate his assessments. Tr. 22-23. None of these reasons are sufficient to discount Dr. Brown's assessment.

         First, the ALJ's general statement that Dr. Brown's assessment is “inconsistent with the longitudinal treatment history” is not sufficient to discount his opinion. Tr. 22. In general, a conclusory statement finding a medical opinion is inconsistent with the overall record is insufficient to reject the opinion. See Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). Specifically, the Ninth Circuit has found that:

To say that medical opinions are not supported by sufficient objective findings or are contrary to the preponderant conclusions mandated by the objective findings does not achieve the level of specificity our prior cases have required, even when the objective factors are listed seriatim. The ALJ must do more than offer his conclusions. He must set forth his own interpretations and explain why they, rather than the doctors', are correct.

Id. Here, the ALJ does not identify specific inconsistencies between Dr. Brown's opinion and the longitudinal record and, as such, this was not a sufficient reason to discount his opinion.

         Second, the ALJ's reference to the “normal” physical examination in the record is also not a sufficient basis to discount Dr. Brown's opinion. Tr. 22. Contrary to the ALJ's finding, the physical examination the ALJ refers to was not conducted by Dr. Brown but was conducted as part of a neurological consultation by Mary Reif, M.D., in November 2011. Tr. 20, 2178. Ms. Penoza was referred to Dr. Reif by Dr. Brown specifically due to concern regarding a tremor in her hands. Tr. 2181. Thus, while Dr. Reifi noted that Ms. Penoza was being treated for psoriatic arthritis and spyondylitis, she did not evaluate her with respect to those impairments but only performed a neurological evaluation to assess the concern about a hand tremor. Tr. 2178- 2183. The ALJ fails to explain how the normal results on a neurological evaluation (assessing general areas such as gait and balance, reflexes, atrophy, strength, sensation, and coordination) contradict or undermine Dr. Brown's diagnosis of psoriatic arthritis and spondylitis or his opinion on the limitations caused by those impairments. See Embrey, 849 F.2d at 421-22 (conclusory reasons are insufficient and do “not achieve the level of specificity” required to justify rejecting a treating opinion). Moreover, there is no evidence indicating that abnormal sedimentation rate and C-reactive protein labs are necessary to diagnose psoriatic arthritis or spondylitis. Thus, without more, the fact that Ms. Penoza's sedimentation rate and C-reactive protein labs were normal does not undermine Dr. Brown's opinion.

         Third, the ALJ also notes that there are no x-rays, CT scans, MRIs, or bone scans to support Dr. Brown's opinions. Tr. 23. However, Dr. Brown's opinion is supported by other objective signs, as noted in his treatment notes, including that Ms. Penoza exhibited multiple swollen joints as well as diffuse muscle spasm, reduced chest expansion, reduced grip strength, reduced LS-spine flexion and extension, and that her psoriasis appeared to have worsened. Tr. 2249-2250; see 20 C.F.R. 404.1502(f) (“Objective medical evidence means signs, laboratory findings, or both”); 20 C.F.R. § 404.1502(g) (“Signs means one or more anatomical, physiological, or psychological abnormalities that can be observed, apart from your statements (symptoms).”). Dr. Brown also appears to indicate on the DSHS form that Ms. Penoza has had “multiple abnormal scans.” Tr. 2229. The ALJ did not address this notation or seek to develop the record regarding the scans Dr. Brown was referring to. See Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001) (ALJ's duty to further develop the record is triggered when there is ambiguous evidence or the record is inadequate to allow for proper evaluation of evidence). Accordingly, the lack of x-rays or scans was also not a sufficient reason to discount Dr. Brown's assessment and ...


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