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Fondell v. Berryhill

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

May 11, 2018

RHONDA ROXANNE FONDELL, Plaintiff,
v.
NANCY A. BERRYHILL, Deputy Commissioner of Social Security for Operations, Defendant.

          ORDER REVERSING AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS

          BRIAN A. TSUCHIDA UNITED STATES MAGISTRATE JUDGE

         Rhonda Roxanne Fondell seeks review of the denial of her applications for Supplemental Security Income and Disability Insurance Benefits. She contends the ALJ erred by (1) evaluating two mental conditions together as one severe impairment; (2) failing to associate any physical limitations to the severe impairment of fibromyalgia; (3) finding her capable of working at the light exertional level rather than the sedentary level or less; (4) improperly rejecting lay witness evidence; and (5) relying on vocational expert testimony that did not satisfy the Commissioner's burden at step five, failing to require the VE to provide proof of her testimony at the hearing, and preventing Fondell's counsel from cross examining the VE. Dkt. 10. The Court REVERSES the Commissioner's final decision and REMANDS the matter for further administrative proceedings under sentence four of 42 U.S.C. § 405(g).

         BACKGROUND

         Ms. Fondell is currently 52 years old, has a high school education, and has worked as a hand packager, book binder, industrial truck operator, sausage maker, and construction worker. Tr. 52, 78, 356. In December 2013, she applied for benefits, alleging disability as of July 2, 2013. Tr. 356, 358. After her applications were denied, the ALJ conducted a hearing and, on August 31, 2016, issued a decision finding Ms. Fondell not disabled. Tr. 20-38. The Appeals Council denied Ms. Fondell's request for review, making the ALJ's decision the Commissioner's final decision. Tr. 1.

         THE ALJ'S DECISION

         Using the five-step disability evaluation process, [1] the ALJ found that Ms. Fondell had not engaged in substantial gainful activity since the alleged onset date; she had the following severe impairments: anxiety disorder (including posttraumatic stress disorder (PTSD)), depressive disorder, fibromyalgia syndrome, degenerative disc disease of the cervical spine and lumbar spine, and status-post left rotator cuff repair; and that these impairments did not meet or equal the requirements of a listed impairment.[2] Tr. 25. The ALJ found that Ms. Fondell had the residual functional capacity to perform light work except that she could stand and/or walk for 4 hours out of 8 hours and sit for 6 hours out of 8 hours; she could frequently climb ramps and stairs but never climb ladders, ropes, or scaffolds; she could occasionally balance, stoop, kneel, crouch, and crawl; she could not perform overhead reaching with the non-dominant left upper extremity; she would need to avoid concentrated exposure to moving machinery and unprotected heights; she should avoid concentrated exposure to extreme cold. Tr. 27. The ALJ found that Ms. Fondell was unable to perform her past work, but there were jobs in significant numbers in the national economy that she could perform. Tr. 36-37. The ALJ therefore found Ms. Fondell not disabled. Tr. 38.

         DISCUSSION

         A. Anxiety disorder and PTSD

         Ms. Fondell argues that the ALJ erred at step two by combining two separately diagnosed mental conditions-anxiety disorder and PTSD, each with their own set of symptoms-into one severe impairment, causing limitations to be left out of the residual functional capacity finding. Dkt. 10 at 3. She points to two examining doctors' diagnoses of PTSD and associated symptoms and argues that the ALJ erred in giving their opinions little weight. Id. at 4-5.

         Step two, where the claimant bears the burden of establishing that she has a medically determinable severe impairment or combination of impairments, is a “de minimis screening device to dispose of groundless claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). Even if an ALJ erroneously finds an impairment to be non-severe, the error is harmless if the ALJ properly considers the limitations caused by the impairment at the later steps. Lewis v. Astrue, 498 F.3d 909, 910 (9th Cir. 2007).

         Here, the ALJ did not find PTSD to be non-severe, but instead considered it to be “included” within Ms. Fondell's anxiety disorder. The mere fact that the ALJ considered one disorder to be included within another does not itself establish a step-two error. Both disorders fall under the category of anxiety disorders in the Social Security listings and the DSM-IV.[3] The ALJ found that both Ms. Fondell's anxiety disorder and PTSD were medically determinable severe impairments, and considered whether Ms. Fondell's impairments met or equaled listing 12.06, the appropriate listing for all anxiety disorders, including PTSD. Thus the issue turns on Ms. Fondell's assertion that the ALJ improperly excluded limitations caused by her PTSD in evaluating her residual functional capacity. This argument is based on the ALJ's giving little weight to the opinions of two examining doctors, Dr. Jorgenson and Dr. Neims.

         In general, the ALJ should give more weight to the opinion of a treating doctor than to that of a non-treating doctor, and more weight to the opinion of an examining doctor than to that of a non-examining doctor. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). Where it is not contradicted by another doctor, the ALJ may reject a treating or examining doctor's opinion only for “clear and convincing reasons.” Id. at 830-31. Where contradicted, the ALJ may not reject a treating or examining doctor's opinion without “specific and legitimate reasons” that are supported by substantial evidence in the record. Id. at 830-31 (quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). An ALJ does this by setting out a detailed and thorough summary of the facts and conflicting evidence, stating her interpretation of the facts and evidence, and making findings. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The ALJ must do more than offer her conclusions; she must also explain why her interpretation, rather than the treating doctor's interpretation, is correct Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (citing Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988)).

         Alicia Jorgenson, M.D., examined Ms. Fondell in May 2014 and diagnosed PTSD, chronic, with panic attacks, and major depressive disorder, moderate, recurrent. Tr. 615. Dr. Jorgenson opined that Ms. Fondell could perform simple and repetitive tasks, but would have more difficulty with detailed and complex tasks. Tr. 616. She found some evidence of concentration and memory impairment, which Dr. Jorgensen opined was related to Ms. Fondell's level of anxiety. Id. She opined Ms. Fondell could accept instructions from supervisors but would have significant difficulty interacting with coworkers and the public. Id. Dr. Jorgenson opined that Ms. Fondell would not be able to maintain regular attendance in the workplace due to her lack of sleep schedule, could not perform a normal workweek without significant interruption from her psychiatric condition, and would not deal well with the usual stress encountered in a competitive work environment. Id. She assigned a global assessment of functioning score (GAF) of 43, indicating serious symptoms or a serious impairment in social, occupational, or school functioning. Id.; Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), 34 (4th ed. text rev. 1994).

         The ALJ gave little weight to Dr. Jorgenson's opinion, noting that Dr. Jorgenson was a one-time examining source and did not review treatment notes from Ms. Fondell's therapist, Dr. Rechel, whose opinion the ALJ gave more weight. Tr. 35. The ALJ also found that Dr. Jorgenson's opinion was inconsistent with her examination findings, noting that while Dr. Jorgenson stated Ms. Fondell had a restricted affect and depressed/anxious mood, she was appropriately dressed, wore makeup, was polite and cooperative, with good eye contact, no psychomotor agitation or retardation, linear and logical thought processes, and no signs of suicidal/homicidal ideation or psychosis. Id. The ALJ found that while Ms. Fondell showed some deficits on mental status testing, Dr. Jorgenson interpreted the results as still consistent with the ability to perform simple and repetitive tasks. Id. The ALJ found that Dr. Jorgenson's conclusion that Ms. Fondell could not work appeared to rely on her anxiety and mood complaints, but the record showed that her symptoms improved with medication, they were not as severe as described, and her complaints were inconsistent with treatment notes, which regularly showed normal mood and ...


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