United States District Court, W.D. Washington, Seattle
ORDER REVERSING AND REMANDING FOR FURTHER
A. TSUCHIDA CHIEF UNITED STATES MAGISTRATE JUDGE.
appeals the ALJ's decision finding him not disabled. Dkt.
11. He contends the ALJ misevaluated the opinions of Victoria
McDuffee, Ph.D., and James Czysz, Ph.D. Id. For the
reasons below, the Court REVERSES the
Commissioner's final decision and
REMANDS the matter for further
administrative proceedings under sentence four of 42 U.S.C.
Court will reverse the ALJ's decision only if it is not
supported by substantial evidence in the record or if the ALJ
applied the wrong legal standard. Molina v. Astrue,
674 F.3d 1104, 1110 (9th Cir. 2012). The Court may not
reverse the ALJ's decision on account of errors that are
harmless. Id. at 1111. Where the evidence is
susceptible to more than one rational interpretation, the
Court must uphold the Commissioner's interpretation.
Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir.
case, plaintiff argues the Court should reverse the
Commissioner's final decision on the grounds the ALJ
misevaluated the opinions of Drs. McDuffee and Czysz. The ALJ
must give specific and legitimate reasons for rejecting a
doctor's medical opinion if contradicted by another
doctor, and clear and convincing reasons for rejecting a
doctor's uncontradicted opinion. Lester v.
Chater, 81 F.3d 821, 830-31 (9th Cir. 1996).
McDuffee examined plaintiff twice, once in 2010 and once in
2013. The ALJ rejected the doctor's 2013 opinion that
plaintiff has moderate to severe cognitive limitations,
antisocial traits, paranoia, and anger for several reasons.
Tr. 437. First, the ALJ found the doctor's opinions are
based upon plaintiff's subjective complaints and not
“clinically or objectively supported.”
Id. The ALJ arrived at this finding noting Dr.
McDuffee did not perform any cognitive testing other than a
trail making test “(which is a test of speed not
cognition), ” and a subjective personality test.
ALJ's finding is not supported by substantial evidence.
Dr. McDuffee's opinion is not based merely upon what
plaintiff told her. Dr. McDuffee recorded plaintiff's
statements, but the evaluation shows the doctor did not
simply adopt plaintiff's statements; rather the
evaluation shows the doctor made clinical findings and
exercised her own professional judgment in rendering her
opinions. For instance, plaintiff told the doctor
“racism prevents him from employment.” There is
no indication the doctor agreed with plaintiff. Rather the
doctor stated “However he has a long history of
violence, ” indicating Dr. McDuffee disagreed. Tr. 324.
Plaintiff also told the doctor “he was a victim in all
his crimes.” Tr. 325. There is no indication Dr.
McDuffee agreed with this either. Instead the record
indicates the doctor rejected plaintiff's claimed
victimization in finding plaintiff has “no
empathy.” Tr. 325. This was a finding the doctor made
in support of plaintiff's “antisocial
McDuffee also found plaintiff was paranoid and had
“persecutory ideation” noting plaintiff “is
suspicious and combined with his poor insight triggers
significant interpersonal conflicts.” Id.
There is no indication plaintiff stated he has “poor
insight.” Such a statement would be contrary to how
plaintiff's told the doctor he is a victim of racism,
i.e., he is not paranoid, and that there is a fact based
reason for his fear and suspicions of others.
McDuffee also found plaintiff has chronic extreme anger
problems. The finding is not based on anything plaintiff said
but on the doctor's observation plaintiff has a history
of violent criminal conduct and convictions, and that while
plaintiff claimed he tries to make people feel comfortable
around him, the doctor observed “he was not observed as
attempting to make evaluator feel comfortable around
ALJ's finding the doctor's testing is deficient to
establish cognitive limitations is also not supported by
substantial evidence. Dr. McDuffee opined plaintiff's
cognitive limitations are in part a result of his “slow
processing speed which is likely a factor in his
employability.” Tr. 325. The ALJ acknowledged the trail
making test measures “speed” but presents no
explanation supported by evidence of record that the
doctor's assessment is incorrect. The ALJ has thus failed
to set forth clear and convincing or substantial and
legitimate reasons to reject Dr. McDuffee's opinion that
plaintiff's slow processing speed is a functional
cognitive limitation. Further, Dr. McDuffee administered a
mental status test, which the ALJ ostensibly rejected as a
“subjective personality test.” The finding
implies that mental status tests are unreliable or not a
proper test that a doctor should administer. There is nothing
in the record supporting such conclusions. Here the doctor
administered and scored the test as showing “cognitive
impairment, ” particularly in regards to memory. Tr.
the ALJ rejected Dr. McDuffee's opinion plaintiff is
paranoid on the grounds there is little objective evidence of
paranoia. Tr. 437. The ALJ noted plaintiff did not complain
of paranoia in prior treatment sessions and has not been
observed to have “thought disturbances.”
Id. This finding is inconsistent with repeated
notations in plaintiff's medical records indicating his
fears of going out, fears of false accusations, and paranoid
feelings. See e.g. 305, 355, 396, 692. Further, the
ALJ's rationale fails to address the basis of Dr.
McDuffee's opinion. Plaintiff told Dr. McDuffie he is a
victim of racism and is being singled out, i.e., this is why
people pick on him, stare at him and get into fights with
him. The doctor did not blindly accept plaintiff's
victimization claim and instead found plaintiff's fears
are based on mental health problems, i.e., explosive anger, a
lack of empathy, lack of insight into his own conduct,
paranoia and persecutory ideation. Dr. McDuffee rejected
plaintiff's defensive claims about his anger problems and
how he tries to make people around him feel comfortable by
noting these claims were inconsistent with plaintiff's
criminal history, history of violence, and the manner in
which plaintiff behaved during the doctor's evaluation.
Hence Dr. McDuffee's opinion plaintiff is paranoid and
has persecutory ideation is based upon clinical evidence
showing plaintiff's fears are not based upon
victimization but on his mental health problems: paranoia and
the ALJ found Dr. McDuffee's opinion plaintiff is
markedly limited in adapting to change is inconsistent with
the lack of “decompensating behavior” in response
to his incarceration or release from jail in 2014, and
because plaintiff worked for a month and a half in 2015. Tr.
438. Neither the ALJ nor the Commissioner in her brief point
to anything in the record showing whether plaintiff
decompensated or not. The record does not provide sufficient
information to support the determination whether plaintiff
decompensated or not and thus the ALJ's finding is not
supported by substantial evidence. And as to the work
plaintiff performed in 2015, plaintiff testified he got into
a dispute with a co-worker and he was let go because his
employer thought he was hostile. Tr. 453-54. Plaintiff's
problematic conduct at the 2015 job thus tends to support
rather than undercut Dr. McDuffee's opinion that
plaintiff lacks insight and empathy which underlies his
paranoia and persecutory ideation. In sum, the Court
concludes the ALJ erred in discounting Dr. McDeffee's