United States District Court, W.D. Washington, Seattle
ORDER REVERSING AND REMANDING CASE FOR FURTHER
Honorable Richard A. Jones United States District
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.
Penoza's application(s) for benefits alleging disability
commencing on January 31, 2011, were denied initially and on
reconsideration. 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 five-step disability evaluation process,  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.
The ALJ's Evaluation of the Medical Evidence
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).
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).
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).
Finding No Medically Determinable Physical
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.
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.
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.
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.
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
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 ...