United States District Court, W.D. Washington, Seattle
THOMAS L. W., Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
ORDER REVERSING THE COMMISSIONER'S FINAL DECISION
AND REMANDING FOR FURTHER PROCEEDINGS
A. TSUCHIDA CHIEF UNITED STATES MAGISTRATE JUDGE.
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).
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.
Dr. Mitchell's opinion
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.
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).
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.
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.
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.
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.
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.
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.