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Thomas L. W. v. Commissioner of Social Security

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

August 20, 2019

THOMAS L. W., Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ORDER REVERSING THE COMMISSIONER'S FINAL DECISION AND REMANDING FOR FURTHER PROCEEDINGS

          BRIAN A. TSUCHIDA CHIEF UNITED STATES MAGISTRATE JUDGE.

         Plaintiff appeals the ALJ's decision finding him not disabled. The ALJ found knee derangement, asthma, organic brain disorder, depression, anxiety, post-traumatic stress disorder (PTSD) and personality disorder are severe impairments, plaintiff has the residual functional capacity (RFC) to preform light work subject to environmental, exertional and mental limitations, and plaintiff cannot perform past relevant work but is not disabled because he can perform other jobs in the national econmy. Tr. 15-29. Plaintiff contends the ALJ erred in discounting the opinions of examining psychologists Melanie Mitchell, Psy.D., and James Czysz, Psy.D., and his testimony, and asks the Court to remand the matter for further proceedings. Dkt. 12 at 1. For the reasons below, the Court REVERSES the Commissioner's final decision and REMANDS the case with for further administrative proceedings under sentence four of 42 U.S.C. § 405(g).

         DISCUSSION

         The ALJ must give more weight to a treating doctor's opinion than to a non-treating doctor, and more weight to an examining doctor's opinion than to a non-examining doctor. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). 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 his 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 his conclusions; he must also explain why his interpretation, rather than the treating doctor's interpretation, is correct. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). The ALJ may reject the uncontradicted opinion of a treating or examining doctor's opinion “clear and convincing reasons.” Lester v. Chater, 81 F.3d at 830-31. Where contradicted, the ALJ must provide “specific and legitimate reasons” that are supported by substantial evidence in the record to reject a treating or examining doctor's opinion. Id.

         A. Dr. Mitchell's opinion

         In March 2016, Dr. Mitchell examined plaintiff and opined plaintiff could not perform activities within a schedule, maintain regular attendance, be punctual, maintain appropriate behavior at work, or complete a normal workday without interruption from his mental symptoms. Tr. 465-66. She also found plaintiff was markedly limited in his ability to understand, remember, persist in tasks, adapt to changes, communicate and perform effectively in a work setting. Id.

         The ALJ discounted Dr. Mitchell's opinions for three reasons. First the ALJ found the doctor examined plaintiff “only once.” Tr. 25. This is a legally erroneous reason. Examining doctors generally provide opinions based upon a single examination. The ALJ's rationale would render all examining opinions superfluous and is also contrary to the requirement the ALJ consider all relevant evidence, including medical opinions of examining doctors. See 20 C.F.R. § 416.945(a) (ALJ must assess medical reports in determining a claimant's capacity to work).

         Next, the ALJ found Dr. Mitchell's findings are “inconsistent with the claimant's normal examination findings.” Tr. 25. The finding is not supported by substantial evidence. Dr. Mitchell observed plaintiff's hygiene was poor, he made limited eye contact, his facial expressions were inappropriate, and he was sullen and flat. Tr. 466-67. Dr. Mitchell administered two standardized tests indicating plaintiff was suffering from severe anxiety and depression symptoms. Tr. 467. The doctor further noted psychomotor agitation and no evidence of feigning or malingering. Id. And Dr. Mitchell found plaintiff was not within normal limits as to his thought process, memory, and judgment. Based on test scores, the doctor further found plaintiff's concentration was not within normal limits. Id. The ALJ failed to provide any basis for the conclusion that Dr. Mitchell's examination findings were “normal” and as illustrated above, the doctor set forth numerous non-normal findings that reasonably support her opinions about the severity of plaintiff's limitations.

         And lastly, the ALJ found Dr. Mitchell's opinions were inconsistent with plaintiff's statements that he has engaged in activities requiring planning and work with others, that he can count change and use public transportation and that his nightmares do not occur frequently and that his medications help him. Tr. 25. Substantial evidence does not support the finding.

         Dr. Mitchell did not indicate plaintiff could not count money or take the bus. Rather she indicated he had moderate limitations in his ability to understand and persists in tasks following short instructions, learn new tasks, perform routine tasks, make simple work decisions and be aware of normal hazards. These limitations are more consistent with the ability to count money and take the bus rather than limitations that preclude such activity. Additionally, although plaintiff checked a box in a function report he could “count change, ” he also indicated he did not know how to use a checkbook or money orders, Tr. 292, and that his ability to handle money has gone downhill because he has “issues counting.” Tr. 293.

         The medical record shows plaintiff status regarding his nightmares and efficacy of medications, is unstable. In November 2016, plaintiff's treating doctor noted plaintiff was taking medications, that plaintiff's anxiety and nightmares were less disruptive though he still had trouble falling asleep. Tr. 575. But by 2017 when plaintiff appeared before the ALJ, plaintiff stated he was homeless and living on the streets, Tr. 92, having flashbacks, and not sleeping much. Tr. 94. Moreover, Dr. Mitchell did not opine plaintiff was unable to work because of nightmares. Rather she found plaintiff suffers from significant depression, anxiety, trauma induced fears and memory problems. Hence plaintiff's improvement regarding nightmares does not contradict Dr. Mitchell's opinions.

         And lastly the ALJ stated plaintiff engaged in activities requiring planning and work with others. However, the ALJ did not did not specify what these activities involved or why they contradicted the doctor's opinions. The Court assumes the ALJ was referring to his discussion at step-three where the ALJ noted plaintiff was engaged in “positive community activities” and was going to teach a martial arts class and develop a game with a group. Tr. 21. However, the record does not flesh out what these activities involved. On review there is nothing showing what positive community activity plaintiff performed, what was involved, or how long the activity lasted. Likewise, while plaintiff twice mentioned in October 2016, he planned to help teach marital arts and help a group create a game, there is no indication he actually engaged in these activities, and they are not otherwise mentioned in the record.

         In sum, as the record does not establish what community activities plaintiff performed and whether plaintiff actually helped teach martial arts and create a game, the Court concludes that substantial evidence does not support the ALJ's reliance on these activities to discount Dr. Mitchell's opinions. The ALJ accordingly erred in rejecting Dr. Mitchell's opinions. The error was harmful because the RFC determination does not fully account for all limitations that the doctor assessed.

         B. ...


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