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Deshone H. v. Commissioner of Social Security

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

December 13, 2019

DESHONE H., Plaintiff,



         Plaintiff seeks review of the denial of his application for Supplemental Security Income. He contends the ALJ erred by rejecting his testimony and three medical opinions. Dkt. 12. As discussed 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. § 405(g).


         A. Plaintiff's Testimony

         Plaintiff testified he frequently gets irritated and angry and isolates himself. Tr. 153. Racing thoughts prevent him from concentrating. Tr. 153-54. He gets anxiety and panic attacks. Tr. 159. An ALJ may “reject [a claimant's] testimony only upon (1) finding evidence of malingering, or (2) expressing clear and convincing reasons for doing so.” Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003). Here, the ALJ found evidence of malingering. AR 31-32. Plaintiff argues the malingering “tended to establish the character of Plaintiff's mental impairments.” Dkt. 17 at 8. Plaintiff's interpretation of the medical evidence does not square with the plain fact there is evidence of malingering. The Court thus cannot say the ALJ unreasonably discounted Plaintiff's testimony based upon malingering. The Court accordingly affirms the ALJ's assessment of Plaintiff's testimony.

         B. Medical Opinions

         Plaintiff contends the ALJ erred by rejecting the opinions of examining psychologist Terilee Wingate, Ph.D., non-examining psychologist Faulder Colby, Ph.D., and treating therapist Ramona Marshall, M.A. Dkt. 12 at 4-10. In general, the ALJ must give specific and legitimate reasons for rejecting an examining doctor's opinion that is contradicted by another doctor. Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). An ALJ “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). An ALJ may reject the opinion of a non-acceptable medical source, such as a therapist, by giving reasons germane to the opinion. Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014).

         1. Terilee Wingate, Ph.D.

         In 2013, Dr. Wingate examined Plaintiff and opined he had marked limitations in maintaining punctual attendance, communicating and performing effectively, maintaining appropriate behavior, and completing a normal work day and work week without interruptions from psychologically based symptoms. Tr. 853. Dr. Wingate's mental status examination findings were within normal limits except for dysphoric mood and blunted affect, and a malingering assessment showed that “memory malingering is likely.” Tr. 856, 854-55. In 2016, Dr. Wingate again examined Plaintiff, finding new abnormalities in fund of knowledge, concentration, abstract thought, and judgment, and opined the same limitations as in 2013. Tr. 1180, 1178. A malingering assessment was not performed.

         The ALJ gave Dr. Wingate's 2013 and 2016 opinions little weight because they were inconsistent with her own and other medical findings. Tr. 34. See Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 601-02 (9th Cir. 1999) (affirming rejection of doctor's opinion that was contradicted by her own and other medical examiners' reports). Plaintiff challenges only the rejection of Dr. Wingate's 2016 opinions.

         a) Other Medical Findings

         Impairments that can be “controlled effectively” by medication or treatment are not considered disabling for purposes of determining eligibility for Social Security benefits. See Warre v. Comm'r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006). However, “‘doing well for the purposes of a treatment program has no necessary relation to a claimant's ability to work or to her work-related functional capacity.'” Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014) (quoting Hutsell v. Massanari, 259 F.3d 707, 712 (8th Cir. 2001)).

         The ALJ found Dr. Wingate's opinions were contradicted by evidence that Plaintiff's symptoms were stable with treatment. Tr. 34. However, the records the ALJ cited do not show effective control of Plaintiff's mental health impairments. In visits between March 2014 and March 2016, Plaintiff consistently reported being down, depressed, or hopeless, and he was frequently described as depressed or with a flat affect. Tr. 984-1005. In August 2014 he reported that his mental health medications were “not working” and caused side effects such as dizziness. Tr. 993. A September 2015 record the ALJ cited shows that Plaintiff likely has “foundational psychiatric issues, ” although he may also be malingering. Tr. 1174. A September 2016 record shows Plaintiff felt a recent medication increase was helpful, but only for the past two days. Tr. 1202. By January 2017, Plaintiff reported frustration, side effects, and “a significant increase in s[ymptoms]” of anxiety and agitation with recent medication changes. Tr. 1216, 1215. He sought inpatient treatment, and his therapist agreed to check on bed availability. Tr. 1216. Plaintiff was hospitalized in January 2017 for suicidal ideation and depression, again in April 2017 for bipolar disorder, and again in May 2017 for “increasing depressive symptoms.” Tr. 1248, 1279, 1265, 1240. In December 2017, Plaintiff's treating provider wrote despite “a complex medication regime, ” he “continues to struggle [with] significant [symptoms] of PTSD and bipolar disorders. He has decompensated about 3 times in past 6 [months] and has used drugs and [alcohol] when he does. He has been hospitalized 2-3 times in past 6 [months].” Tr. 1593. Plaintiff was hospitalized yet again in December 2017. Tr. 1682. Given this record, periodic notations of normal mood and affect during physical health appointments, or that Plaintiff was “handl[ing] stress much better, ” are not substantial evidence supporting the ALJ's finding that Plaintiff's impairments were well controlled with medication. Tr. 1648. The ALJ also cited several instances where Plaintiff reported feeling better after medication changes. See, e.g., Tr. 1654, 1679. But the fact Plaintiff's medications were changed so frequently demonstrates that stable improvement remained elusive. Improvement with medication was not a specific and legitimate reason to discount Dr. Wingate's opinions.

         b) Dr. ...

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