Opinion
Case No. 19-cv-07699-LB
12-15-2020
A.C., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT
Re: ECF No. 19, 24
INTRODUCTION
The plaintiff, A.C., seeks judicial review of a final decision by the Commissioner of the Social Security Administration denying his claim for supplemental security income ("SSI") benefits under Title XVI of the Social Security Act ("SSA"). The plaintiff moved for summary judgment. The Commissioner opposed the motion and filed a cross-motion for summary judgment, and the plaintiff filed a reply. Under Civil Local Rule 16-5, the matter is submitted for decision by this court without oral argument. All parties consented to magistrate-judge jurisdiction. The court grants the plaintiff's motion for summary judgment, denies the Commissioner's cross motion, and remands for further proceedings.
Mot. - ECF No. 15. Citations refer to material in the Electronic Case File ("ECF"); pinpoint citations are to the ECF-generated page numbers at the top of documents.
Id.
Cross-Mot. - ECF No. 16; Pl. Reply - ECF No. 17.
Consent Forms - ECF Nos. 6, 9.
STATEMENT
1. Procedural History
On July 25, 2016, the plaintiff filed an application for social-security disability insurance benefits. The Commissioner denied his claim on November 10, 2016, and again on June 21, 2017. On June 13, 2017, the plaintiff asked for a hearing before an Administrative Law Judge ("ALJ"). On May 21, 2018, the ALJ held a hearing and heard testimony from a vocational expert ("VE"), but the plaintiff did not appear or testify. The ALJ subsequently permitted the plaintiff to submit written testimony, and the plaintiff did so. The ALJ issued an unfavorable decision on October 1, 2018. On September 26, 2019, the Appeals Council denied the plaintiff's request for review, and the ALJ's decision became the final administrative decision.
AR 150-79.
AR 78-83; AR 87-93.
AR 94-96
AR 35-50.
AR 39; AR 292-96.
AR 15-27.
AR 2-4.
The plaintiff timely filed this action on April 15, 2020 and moved for summary judgment, the Commissioner opposed the motion and filed a cross-motion for summary judgment, and the plaintiff replied to the cross-motion. All parties consented to the undersigned's jurisdiction.
Mot. - ECF No. 15; Cross-Mot. - ECF No. 16; Pl. Reply - ECF No. 17.
Consent Forms - ECF Nos. 6, 9.
2. Medical Records
The plaintiff originally alleged that he was disabled due to "physical impairments[,] symptoms related to coma[, and] various physical conditions." At the administrative hearing, the following records were submitted: (1) records from Katherine Wiebe, Ph.D., an examining clinical psychologist; (2) records from state non-examining medical consultants Kristiarsi Rudito, M.D., Randall Garland, Ph.D., and Richard Willens, Psy.D; (3) records from Ute Kollath, Ph.D., an examining clinical psychologist; (4) records from Eugene McMillan, M.D., an examining doctor; and (5) records from Lynn Jehle, an examining nurse practitioner ("NP"), who performed a neurological examination of the plaintiff. Because the plaintiff challenges the ALJ's weighing of the medical records, this order recounts the disputed opinions fully.
AR 151.
AR 423-33.
AR 51-75.
AR 441-45.
AR 67-75.
AR 536-40.
2.1.1 Katherine Wiebe, Ph.D. — Examining Psychologist
Dr. Wiebe examined the plaintiff on September 19, 2016 and November 28, 2016. She diagnosed the plaintiff with the following: (1) a neurocognitive disorder; (2) a mental disorder; (3) a personality disorder with turbulent personality traits, antisocial personality traits, and histrionic personality features; (4) mild methamphetamine use disorder, (5) mild cannabis use disorder, and (6) alcohol use disorder. The plaintiff complained of problems with memory, attention, hygiene, and mood. He had impairments in insight, judgment, and reasoning that affected his ability to make decisions, and these impairments made him unable to accomplish daily living activities.
AR 423-36.
AR 432.
AR 424-25.
AR 425.
Dr. Wiebe observed the following. The plaintiff was malodorous, dressed in soiled clothes, and appeared underweight. He exhibited psychomotor agitation and his mood was dysphoric, and he had dentation issues and problems with memory and attention. Dr. Wiebe administered the following procedures: (1) a clinical interview; (2) Repeatable Battery for the Assessment of Neuropsychological Status (RBANS) Form A; (3) Annotated Mini Mental State Examination (AMMSE); (4) clock-drawing; (5) Trail Making A; (6) Trail Making B; (7) Back Anxiety Inventory (BAI); (8) Mental Status and Psychiatric Symptoms Sheet; and (9) Millon Clinical Multiaxial Inventory IV (MCMI-IV).
AR 426.
Id.
Id.
Dr Wiebe interpreted the test results and found the following. The plaintiff had severe impairment in memory. He had moderate to severe impairment in attention and concentration. He had moderate impairments in language and visuo-spatial ability. He had mild executive and sensory motor functioning impairments. His overall intellectual abilities were within normal range. Based on these determinations, Dr. Wiebe found that the plaintiff was unable to accomplish daily living activities and would have difficulty attending to and remembering tasks. He also had tendencies for cognitive distortions and problems with social interactions, and he was "socially avoidant, impulsive, irresponsible, hostile, and hotheaded."
AR 427.
AR 427-28.
Id.
AR 431-32.
AR 432.
Id.
Dr. Wiebe also addressed how these symptoms and diagnoses affected the plaintiff's work-related abilities. She found that the plaintiff would have difficulties being able to relate to and communicate effectively with supervisors, co-workers, and the public in a work environment. As a result, he would have difficulty being able to work on a full-time basis for two years even if he did not use substances or alcohol in the future.
Id.
She assessed determined his work-related mental abilities and aptitude as follows. The plaintiff had marked impairments in his ability to (1) understand, remember, and carry out detailed instructions, (2) maintain attention and concentration for two-hour segments, (3) get along and work with others, (4) interact appropriately with the general public, (5) accept instructions and respond appropriately to criticism from supervisors, (6) complete a normal workday and workweek without interruptions from psychologically-based symptoms, and (7) maintain a regular attendance and be punctual within customary usually strict tolerances. He had moderate impairments in his ability to (1) understand, remember and carry out very short and simple instructions, (2) perform at a consistent pace without an unreasonable number and length of rest periods, and (3) respond appropriately to changes in a routine work setting and deal with normal work stressors.
AR 436.
Id.
2.1.2 State Non-Examining Medical Consultants
The plaintiff's medical records were reviewed by medical consultants Kristiarsi Rudito, M.D., Randall J. Garland, Ph.D., and Richard Willens, Psy. D. The consultants' findings were summarized in a disability-determination evaluation report at the reconsideration level. After reviewing the plaintiff's medical history, the consultants diagnosed the plaintiff with (1) severe neurocognitive disorders, (2) severe depressive bipolar and related disorders, (3) severe alcohol addiction, (4) severe drug addiction, and (5) severe personality and impulse-control disorders. They opined that it was "unclear whether or not the [plaintiff] can meet the basic mental demands of unskilled work." After considering "the lack of a recent MSE, the dearth of longitudinal [psychological] evidence, [and] the lack of psychometric/organicity testing," they recommended an additional psychological consultative examination with psychometric and organicity testing. The consultants concluded that "the [plaintiff's] impairment does not impose more than moderate limitations" and designated him not disabled.
AR 58-75.
Id.
AR 66.
AR 67.
Id.
AR 68.
AR 74.
2.1.3 Ute Kollath, Ph.D. — Examining Psychologist
Dr. Kollath examined the plaintiff on May 22, 2017. The plaintiff complained of poor attention and impaired memory and said that he was unable to work because of memory and attention issues caused by a head injury and a resulting coma. Dr. Kollath observed that the plaintiff was poorly dressed and malodorous, but that his intelligence, attention, concentration, fund of knowledge, and memory were all fair and adequate.
AR 441-45.
AR 441.
AR 443.
Dr. Kollath performed the following procedures: (1) a complete psychological evaluation; (2) Folstein Mini Mental State Exam (MMSE); (3) Wechsler Adult Intelligence Scale (WAIS-IV); and (4) Trail Making Test (TMT). She interpreted the test results and found that the plaintiff had no difficulty following "simple and moderately complex directions" and that his clinical presentation might be indicative of neurocognitive or cognitive disorder. Based on her evaluation, she diagnosed the plaintiff with (1) severe methamphetamine use disorder, (2) methamphetamine intoxication, and (3) methamphetamine-related disorder.
Id.
Id.
AR 444.
Dr. Kollath concluded the following about the plaintiff's work-related abilities. The plaintiff was moderately impaired in his ability to follow complex and detailed instructions and to maintain adequate pace or persistence to perform complex tasks. He was mildly impaired in his ability to (1) maintain adequate attention and concentration, (2) adapt to changes in job routine, (3) withstand the stress of a routine workday, and (4) interact appropriately with co-workers, supervisors, and the public on a regular basis. He was unimpaired in his ability to (1) follow simple instructions, (2) maintain adequate pace or persistence to perform simple repetitive tasks, and (3) adapt to changes, hazards, or stressors in workplace setting.
Id.
Id.
Id.
2.1.4 Lynn Jehle, NP — Examining Nurse Practitioner
On February 15, 2018, NP Jehle performed a neurological examination of the plaintiff. The plaintiff complained of having short-term memory and concentration problems, difficulty remembering appointments and difficulty navigating from one place to another. NP Jehle observed the following. The plaintiff was slender and poorly groomed. His speech was clear, and he appeared to have excellent visual spatial abilities. His mood was "testy," although he was cooperative during the examination.
AR 536-40.
AR 536.
AR 538.
Id.
Id.
NP Jehle reviewed the plaintiff's magnetic resonance imaging ("MRI") and observed the following: (1) evidence of diffuse axonal shear injury in the left cerebral hemisphere; (2) significant corpus-callosum atrophy; (3) white-matter atrophy associated with lateral-ventricular enlargement; (4) asymmetric left hippocampal atrophy; and (5) small cystic changes in the left pons and bilateral cerebellar hemispheres, suggesting chronic lacunar infarcts. She attributed these conditions as "partially due to his traumatic brain injury" but said that "many of these changes were likely caused by his long history of polysubstance abuse." She classified the damage to the plaintiff's brain as "extensive." She suggested that the plaintiff needed a residential-rehabilitation program and reported that the plaintiff wanted to be able to work, but that he might have issues "tolerating a rehabilitation center and work environment." Based on her findings, she diagnosed the plaintiff with (1) a traumatic brain injury, (2) memory deficits, and (3) polysubstance abuse.
AR 539.
Id.
Id.
Id.
AR 540.
3. Administrative Proceedings
3.1 Disability-Determination Explanations
During the administrative process, non-examining doctors generated two disability-determination explanations ("DDE"), one related to the plaintiff's initial application and one at the reconsideration level.
At the initial level, the state doctors found that no diagnosis could be established because of insufficient medical evidence. The doctors did not make a residual-functional capacity ("RFC") determination at this level. They concluded that the plaintiff was not disabled.
AR 57.
AR 55.
Id.
On reconsideration, the doctors found the following impairments to be severe: (1) neurocognitive disorders, (2) depressive, bipolar, and related disorders, (3) substance-addiction disorders (alcohol), (4) substance-addiction disorders (drugs), and (5) personality and impulse-control disorders. The doctors again found the plaintiff to be not disabled despite the identification of these impairments.
AR 66.
AR 74.
3.2 Administrative Hearing
The ALJ held a hearing on May 21, 2018. The plaintiff did not appear or testify at the hearing, but vocational expert ("VE") Christopher Salvo was present and testified. The ALJ subsequently permitted the plaintiff to submit a brief with his testimony, and the plaintiff did so.
AR 35-50.
Id.
AR 39; AR 292-96.
3.2.1 Plaintiff's Testimony
The ALJ permitted the plaintiff to submit written evidence pursuant to 20 CFR 416.1429(a). The plaintiff testified via a written brief as follows.
AR 18.
The plaintiff, age 38, lives in Oakland, CA. He left school after the 10th grade and completed his high-school education while incarcerated at the Marsh detention facility. In April 2012, he was assaulted and suffered a laceration wound on his forehead and was in a coma for a number of days. He was diagnosed with "a diffused axonal injury, right forehead laceration, and intracranial hemorrhaging." Since his brain injury in 2012, he has experienced severe cognitive impairments, including "memory loss, diminished ability to concentrate, and an unspecified neurocognitive disorder." He was subsequently diagnosed with "depressive disorder, anxiety disorder, and personality disorder."
AR 293.
Id.
Id.
Id.
Id.
Id.
The plaintiff began using drugs and alcohol in his late adolescence. At the time he submitted the brief, he used methamphetamine "typically once a month," and "regularly" smoked marijuana. His cognitive impairments persisted during periods of sobriety.
Id.
Id.
Id.
The plaintiff was unemployed, and had not worked at any time during the period of his alleged disability. He worked various jobs over the past fifteen years, and his highest annual earnings were $9,313.74. He said that none of his work history has reached the level of substantial gainful activity, and that his brain injury prevented him from being able to continue working.
AR 294.
Id.
Id.
The combination of his cognitive disabilities imposed limitations on his ability to complete unskilled work, including "understanding, remembering, and carrying out detailed instructions; maintaining attention and concentration for two hour segments; getting along and working with others; accepting instructions and responding appropriately to criticism from supervisors; completing a normal workday and workweek without interruptions from psychologically based symptoms; and maintaining regular attendance and being punctual."
AR 295-96.
3.2.2 VE's Testimony
VE Christopher Salvo testified at the hearing. He said that the plaintiff had various jobs in the last fifteen years but none reached the level of substantial gainful activity.
AR 39-42.
The ALJ posed the first hypothetical to the VE: "a person of the claimant's age, education, and work experience who could do heavy work" limited by the following: (1) "simple" work as defined in the DOT as SVP levels 1 and 2, routine and repetitive; and (2) "low-stress" as defined as "having only occasional decision making, only occasional changes in the work setting; no interaction with the general public; and work can be performed throughout the day around coworkers, but only occasional interaction with the coworkers." Under this hypothetical, the VE testified that the following jobs were available: (1) hand packer, (2) machine packer, and (3) recycle attendant.
AR 42.
AR 42-43.
The ALJ posed a second hypothetical to the VE. In addition to the conditions of the previous hypothetical, the person was "off task 15 percent of the time." The VE testified that there were no jobs available to an individual who was off task for 15 percent of their workday or workweek.
AR 43.
AR 44.
The plaintiff's representative questioned the VE. To the ALJ's first hypothetical, he added that the person was unable to remember or follow instructions. The VE testified that a person unable to follow or remember instructions would not be able to do any of the three jobs.
Id.
AR 45.
3.3 Administrative Findings
The ALJ analyzed the five-step process to determine whether the plaintiff was disabled and concluded that he was not.
At step one, the ALJ found that the plaintiff had not engaged in substantial gainful activity since the application date on July 25, 2016.
AR 21.
At step two, the ALJ found that the plaintiff had the following severe impairments: polysubstance abuse (methamphetamine and alcohol), unspecified depressive disorder, unspecified anxiety disorder, and unspecified neurocognitive disorder.
AR 22.
At step three, the ALJ found that the plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of a listed impairment.
AR 22-23.
Before reaching step four, the ALJ determined the following about the plaintiff's RFC:
The plaintiff] has the residual functional capacity to perform a full range of work at all exertional levels but with the following non[-]exertional limitations: work limited to simple as defined in the DOT as SVP levels 1 and 2, routine and repetitive tasks; work in a low stress job as defined as having only occasional decision making required and only occasional changes in the work setting; no interaction with the general public and work can be around co-workers throughout the day, but with only occasional interaction with co-workers.
AR 24.
At step four, the ALJ found that the plaintiff had no past relevant work experience.
Id.
At step five, the ALJ found that the following jobs were available to the plaintiff: hand packer and machine packer.
Id.
The ALJ found the plaintiff "capable of making a successful adjustment to other work that exists in significant numbers in the national economy" and concluded that the plaintiff was "not disabled."
Id.
STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), district courts have jurisdiction to review any final decision of the Commissioner if the claimant initiates a suit within sixty days of the decision. A court may set aside the Commissioner's denial of benefits only if the ALJ's "findings are based on legal error or are not supported by substantial evidence in the record as a whole." Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (cleaned up); 42 U.S.C. § 405(g). "Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). The reviewing court should uphold "such inferences and conclusions as the [Commissioner] may reasonably draw from the evidence." Mark v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). If the evidence in the administrative record supports the ALJ's decision and a different outcome, the court must defer to the ALJ's decision and may not substitute its own decision. Tackett v. Apfel, 180 F.3d 1094, 1097- 98 (9th Cir. 1999). "Finally, [a court] may not reverse an ALJ's decision on account of an error that is harmless." Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012).
GOVERNING LAW
A claimant is considered disabled if (1) he suffers from a "medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months," and (2) the "impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. . . ." 42 U.S.C. § 1382c(a)(3)(A) & (B). The five-step analysis for determining whether a claimant is disabled within the meaning of the Social Security Act is as follows. Tackett, 180 F.3d at 1098 (citing 20 C.F.R. § 404.1520).
Step One. Is the claimant presently working in a substantially gainful activity? If so, then the claimant is "not disabled" and is not entitled to benefits. If the claimant is not working in a substantially gainful activity, then the claimant's case cannot be resolved at step one, and the evaluation proceeds to step two. See 20 C.F.R. § 404.1520(a)(4)(i).
Step Two. Is the claimant's impairment (or combination of impairments) severe? If not, the claimant is not disabled. If so, the evaluation proceeds to step three. See 20 C.F.R. § 404.1520(a)(4)(ii).
Step Three. Does the impairment "meet or equal" one of a list of specified impairments described in the regulations? If so, the claimant is disabled and is entitled to benefits. If the claimant's impairment does not meet or equal one of the impairments listed in the regulations, then the case cannot be resolved at step three, and the evaluation proceeds to step four. See 20 C.F.R. § 404.1520(a)(4)(iii).
Step Four. Considering the claimant's RFC, is the claimant able to do any work that he or she has done in the past? If so, then the claimant is not disabled and is not entitled to benefits. If the claimant cannot do any work he or she did in the past, then the case cannot be resolved at step four, and the case proceeds to the fifth and final step. See 20 C.F.R. § 404.1520(a)(4)(iv).
Step Five. Considering the claimant's RFC, age, education, and work experience, is the claimant able to "make an adjustment to other work?" If not, then the claimant is disabled and entitled to benefits. See 20 C.F.R. § 404.1520(a)(4)(v). If the claimant is able to do other work, the Commissioner must establish that there are a significant number of jobs in the national economy that the claimant can do. There are two ways for the Commissioner to show other jobs in significant numbers in the national economy: (1) by the testimony of a vocational expert or (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R., part 404, subpart
P, app. 2.
For steps one through four, the burden of proof is on the claimant. At step five, the burden shifts to the Commissioner. Gonzales v. Sec'y of Health & Human Servs., 784 F.2d 1417, 1419 (9th Cir. 1986).
ANALYSIS
The plaintiff contends the ALJ erred by (1) determining that his brain injury was not a severe impairment at step two, (2) failing to give proper weight to the medical opinions and evidence, (3) determining that his statements concerning the severity of his symptoms are not consistent with the medical evidence, and (4) improperly assessing his RFC.
The court grants the plaintiff's motion for summary judgment and denies the Commissioner's cross-motion.
1. Whether the ALJ Erred by Determining the Brain Injury to be Non-Severe
The plaintiff contends that the ALJ erred at step two of the five-step sequential process by finding that his brain injury was not a severe physical impairment. The court remands on this ground.
1.1 Legal Standard
At step two, the ALJ determines whether the claimant has a medically severe impairment or combination of impairments. Smolen, 80 F.3d 1273 at 1290. The ALJ must consider the entire record, including evidence that both supports and detracts from its final decision. Reddick, 157 F.3d at 720. An impairment is not severe if it does not significantly limit the claimant's mental or physical abilities to do basic work activities. 20 C.F.R. § 404.1521(a). Basic work activities are "abilities and aptitudes necessary to do most jobs," including, for example, "walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling." 20 C.F.R. § 404.1521(b).
The Social Security Administration promulgated new regulations, including a new § 404.1521, effective March 27, 2017. The previous version, effective to March 26, 2017, governs based on the plaintiff's filing date, July 25, 2016.
The burden at step two is on the plaintiff and is a relatively low bar. The Ninth Circuit has held that "the step two inquiry is a de minimis screening device to dispose of groundless claims." Smolen, 80 F.3d at 1290 (citing Bowen v. Yuckert, 482 U.S. 137 at 153-54 (1987)). Thus, "[a]n impairment or combination of impairments can be found 'not severe' only if the evidence establishes a slight abnormality that has no more than a minimal effect on an individual[']s ability to work." Id. (internal quotation marks omitted) (citing Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir.1988)).
1.2 Application
The ALJ held that the plaintiff's brain injury was not a severe physical impairment because "the record indicates that it has caused only a slight abnormality based on a neurological examination and diagnostic imaging." Relying on NP Jehle's neurological examination, the ALJ further held that although there is evidence "indicating that the [plaintiff's] memory and concentration issues are partially due to traumatic brain injury," many of his brain issues are "likely caused by his long history of polysubstance abuse."
AR 21.
Id.
The plaintiff contends the ALJ erred by misinterpreting NP Jehle's neurological findings and mischaracterizing "the relationship between [the plaintiff's] substance use history and his brain condition," which caused the ALJ to harmfully exclude certain non-exertional limitations expected of someone with extensive brain damage.
Mot. - ECF No. 15 at 7-8.
First, the ALJ erred by finding that the record indicates that the plaintiff's brain injury is only a slight abnormality. In her neurological review of the plaintiff, NP Jehle found numerous neurological injuries, consisting of the following: (1) evidence of diffuse axonal shear injury in the left cerebral hemisphere; (2) significant corpus-callosum atrophy; (3) white-matter atrophy associated with lateral-ventricular enlargement; (4) asymmetric left hippocampal atrophy; and (5) small cystic changes in the left pons and bilateral cerebellar hemispheres, suggesting chronic lacunar infarcts. NP Jehle characterized these injuries as "extensive damage." The state non-examining consultants (whose opinions were given the greatest weight) also diagnosed the plaintiff with "severe neurocognitive disorders." Because the ALJ's findings were seemingly based solely on NP Jehle's neurological examination — which found evidence of "extensive damage" — the ALJ's conclusion that the plaintiff's brain injury is a slight abnormality was erroneous and not supported by the medical evidence.
AR 539.
Id.
AR 66.
Moreover, the record establishes that the plaintiff's ability to work was diminished by his brain injury. Dr. Wiebe concluded that the plaintiff would have difficulties being able to relate to and communicate effectively with supervisors, co-workers, and the public in a work environment as a result of his brain injury, and NP Jehle stated that the plaintiff would likely have problems "tolerating" a work environment. Although Dr. Kollath and the state medical consultants provided contradictory opinions, as discussed in the next section, the conclusions of Dr. Wiebe and NP Jehle should have been given greater weight, and they sufficiently meet the de minimis burden at step two. See Smolen, 80 F.3d at 1290.
AR 432; AR 539.
Second, the ALJ erred by finding the plaintiff's head injury non-severe because his memory and concentration issues were "likely caused by his long history of polysubstance abuse" and only "partially due to traumatic brain injury." In making this conclusion, the ALJ again relied on NP Jehle's neurological evaluation of the plaintiff. In her evaluation, NP Jehle explicitly attributes the plaintiff's neurological issues to a combination of brain injury and substance abuse. The ALJ's conclusion, however, discount the contribution of the plaintiff's brain injury to his cognitive issues. Furthermore, it is possible that the plaintiff's polysubstance abuse has been exacerbated sperated by his brain injury. Accordingly, because the ALJ relied solely on NP Jehle's evaluation, and because NP Jehle explicitly attributed a combination of brain injury and polysubstance abuse as the cause of the plaintiff's "extensive" neurological damage, the ALJ's reliance on the plaintiff's polysubstance abuse and minimization of his brain injury as the cause of his cognitive issues was erroneous.
AR 21.
AR 539.
Finally, the commissioner cites Lewis v. Astrue to support the argument that even if the ALJ erred in finding the plaintiff's brain injury to be non-severe, the error was harmless because it did not later affect the ALJ's assessment of the plaintiff's RFC. This argument fails because the additional finding of a severe and traumatic brain injury could effectuate a finding of additional functional limitations when re-evaluating the plaintiff's RFC. Accordingly, the ALJ's error was not harmless.
Cross-Mot. - ECF No. 16 at 5-6.
In sum, the court remands on this ground.
2. Whether the ALJ Erred in Weighing the Medical Evidence
The plaintiff contends that the ALJ erred by (1) rejecting the opinion of Dr. Wiebe, (2) rejecting the opinion of NP Jehle, (3) giving greatest weight to the opinion of Dr. Kollath, and (4) giving greatest weight to the opinion of the state non-examining consultants.
Mot. - ECF No. 16 at 5-11.
The court holds that the ALJ erred in weighing these opinions and remands on this ground.
2.1 Legal Standard
The ALJ is responsible for "resolving conflicts in medical testimony, and for resolving ambiguities." Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014) (quotation omitted). In weighing and evaluating the evidence, the ALJ must consider the entire case record, including each medical opinion in the record, together with the rest of the relevant evidence. 20 C.F.R. § 416.927(b); see Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) ("[A] reviewing court must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence.") (cleaned up).
"In conjunction with the relevant regulations, [the Ninth Circuit has] developed standards that guide [the] analysis of an ALJ's weighing of medical evidence." Ryan v. Comm'r of Soc. Sec., 528 178 F.3d 1194, 1198 (9th Cir. 2008) (citing 20 C.F.R. § 404.1527). Social Security regulations distinguish among between three types of physicians: (1) treating physicians; (2) examining physicians; and (3) non-examining physicians. 20 C.F.R. § 416.927(c), (e); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). "Generally, a treating physician's opinion carries more weight than an examining physician's, and an examining physician's opinion carries more weight than a reviewing [non- examining] physician's." Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001) (citing Lester, 81 F.3d at 830); Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996).
The Social Security Administration promulgated new regulations, including a new § 404.1521, effective March 27, 2017. The previous version, effective to March 26, 2017, governs based on the plaintiff's filing date, July 25, 2016.
"To reject [the] uncontradicted opinion of a treating or examining doctor, an ALJ must state clear and convincing reasons that are supported by substantial evidence." Ryan, 528 F.3d at 1198 (alteration in original) (cleaned up). By contrast, if the ALJ finds that the opinion of a treating or examining physician is contradicted, a reviewing court will require only that the ALJ provide "specific and legitimate reasons supported by substantial evidence in the record." Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (cleaned up); see Garrison, 759 F.3d at 1012 ("If a treating or examining doctor's opinion is contradicted by another doctor's opinion, an ALJ may only reject it by providing specific and legitimate reasons that are supported by substantial evidence.") (cleaned up). "The opinions of non-treating or non-examining physicians may also serve as substantial evidence when the opinions are consistent with independent clinical findings or other evidence in the record." Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002).
An ALJ errs when she "rejects a medical opinion or assigns it little weight" without explanation or without explaining why "another medical opinion is more persuasive, or criticiz[es] it with boilerplate language that fails to offer a substantive basis for his conclusion." Garrison, 759 F.3d at 1012-13. "[F]actors relevant to evaluating any medical opinion, not limited to the opinion of the treating physician, include the amount of relevant evidence that supports the opinion and the quality of the explanation provided[,] the consistency of the medical opinion with the record as a whole[, and] the specialty of the physician providing the opinion. . . ." Orn, 495 F.3d at 631 (citing 20 C.F.R. § 404.1527(d)(3)-(6)); see also Magallanes v. Bowen, 881 F.2d 747, 753 (9th Cir. 1989) (an ALJ need not agree with everything contained in the medical opinion and can consider some portions less significant than others).
The ALJ must consider the opinions of other "medical sources who are not acceptable medical sources and [the testimony] from nonmedical sources." 20 C.F.R. § 404.1527(f). The ALJ is required to consider observations by "other" sources as to how an impairment affects a claimant's ability to work. Id. Nonetheless, an "ALJ may discount [the] testimony" or an opinion "from these other sources if the ALJ gives . . . germane [reasons] for doing so." Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (cleaned up). "[A]n opinion from a medical source who is not an acceptable medical source may outweigh the medical opinion of an acceptable medical source[.]" 20 C.F.R. § 404.1527(f)(1). "For example, it may be appropriate to give more weight to the opinion of a medical source who is not an acceptable medical source if he or she has seen the individual more often than the treating source, has provided better supporting evidence and a better explanation for the opinion, and the opinion is more consistent with the evidence as a whole." Id.
Nurse practitioners are "other" sources. 20 CFR 404.1513. "Other" sources are acceptable in deciding the severity of an impairment. See Solomon v. Astrue, No. 10-CV-1548-RBL-JRC, 2011 WL 4368337 (W.D. Wash. Aug. 26, 2011) (remanding because the ALJ erred by considering the plaintiff's treating nurse practitioners as non-accepted medical sources and so gave their evidence limited weight, and holding that the ALJ should instead consider them as "other" sources and give them the proper re-evaluated weight). This is especially the case when the "other" medical source is a treating source of some sort and has had the most, or most consistent, contact with the plaintiff's conditions. Revels v. Berryhill, 874 F.3d 648, 665 (9th Cir. 2017) (the ALJ erred by not crediting the opinion of the plaintiff's treating nurse practitioner with greater weight as an "other" source when she treated the plaintiff at least ten times over two years).
2.2 Application
The Plaintiff contends that the ALJ erred by giving "less weight" to the opinions of Dr. Wiebe and NP Jehle, and, conversely, the greatest weight to the opinions of Dr. Kollath and the state non-examining consultants. The court addresses their opinions together because the ALJ assigned them weight using identical reasoning.
Dr. Wiebe examined the plaintiff and opined that he had marked impairments in his ability to (1) understand, remember, and carry out detailed instructions, (2) maintain attention and concentration for two hour segments, (3) get along and work with others, (4) interact appropriately with the general public, (5) accept instructions and respond appropriately to criticism from supervisors, (6) complete a normal workday and workweek without interruptions from psychologically-based symptoms, and (7) maintain a regular attendance and be punctual within customary usually strict tolerances. She also opined that the plaintiff had moderate impairments in his ability to (1) understand, remember and carry out very short and simple instructions, (2) perform at a consistent pace without an unreasonable number and length of rest periods, and (3) respond appropriately to changes in a routine work setting and deal with normal work stressors.
AR 436.
Id.
NP Jehle conducted a neurological examination of the plaintiff and found that he had "extensive" brain damage. She diagnosed the plaintiff with a traumatic brain injury, memory deficits, limited attention, and polysubstance abuse. Based on this diagnosis, she concluded that the plaintiff might have issues tolerating a work environment.
AR 539.
AR 540.
AR 539.
Dr. Kollath examined the plaintiff and found that he was moderately impaired in his ability to follow complex and detailed instructions and to maintain adequate pace or persistence to perform complex tasks; mildly impaired in his ability to (1) maintain adequate attention and concentration, (2) adapt to changes in job routine, (3) withstand the stress of a routine workday, and (4) interact appropriately with co-workers, supervisors, and the public on a regular basis; and unimpaired in his ability to (1) follow simple instructions, (2) maintain adequate pace or persistence to perform simple repetitive tasks, and (3) adapt to changes, hazards, or stressors in workplace setting.
AR 444.
Dr. Wiebe is an examining psychologist, and her opinion is contradicted. Thus, the ALJ was required to give specific and legitimate reasons based on substantial evidence to discount her opinion. Garrison, 759 F.3d at 1012. NP Jehle is a nurse practitioner (an "other" source); thus the ALJ was required to provide "germane" reasons for discounting her opinion. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). The ALJ gave their opinions less weight because they were "not consistent with the overall medical evidence of record, which does indicate that the claimant has limitations in various areas such as the ability to concentrate, follow instructions, and adapt; however, the available medical evidence does not support such restrictive limitations." This reason is not specific, legitimate, or supported by substantial evidence (as to Dr. Wiebe), or germane (as to NP Jehle).
AR 25.
First, the ALJ's explanation of the weight given to their opinions is conclusory and not sufficiently specific or germane. An ALJ must provide specific reasons for assigning a contradicted medical opinion little weight. Reddick, 157 F.3d at 725. An ALJ errs when she "rejects a medical opinion or assigns it little weight" while only "criticizing it with boilerplate language that fails to offer a substantive basis for [their] conclusion." Garrison, 759 F.3d at 1012. Moreover, an ALJ is required to provide "germane" reasons to reject the opinion of a nurse practitioner. See Molina, 674 F.3d at 1111. The ALJ gave Dr. Kollath's opinion greatest weight because "it is consistent with the overall medical evidence of record that, despite evidence of polysubstance abuse, the claimant exhibits moderate impairment in his functional ability." This is conclusory and insufficient. See Keelen v. Comm'n of Soc. Sec., No. 19-cv-00461-LB, 2020 WL 1306982, at *14 (N.D. Cal. Mar. 19, 2020) (the ALJ erred in according great weight to a medical expert solely because the expert "had the opportunity to review all of the medical evidence of record and his opinion is consistent with the record as a whole"). Conversely, the ALJ said that Dr. Wiebe and NP Jehle's opinions were "not consistent with the overall medical evidence of record." These reasons are boilerplate and offer no explanation and thus provide no specific or germane reasons for reaching this conclusion.
Id.
Id.
Second, similarly, the ALJ's assertion that the opinions of Dr. Wiebe and NP Jehle were overly restrictive and inconsistent with the overall medical evidence is not supported by substantial evidence. Dr. Wiebe found that the plaintiff has primarily marked limitations with some moderate limitations, and that he would have difficulty working on a full-time basis. NP Jehle found that the plaintiff has extensive brain damage and would have difficulty tolerating a work environment. The ALJ conceded that the record indicates the presence of these limitations, but nevertheless concluded that their assessments of them are too restrictive.
AR 436.
AR 539.
AR 25.
The ALJ's decision is supported only by the bare assertion that their opinions are inconsistent with the overall medical record. When assigning a medical opinion less weight, an ALJ is required to explain why another opinion is more persuasive. Id. at 1012-13. Also, a nurse practitioner's opinion "may outweigh the medical opinion of an acceptable medical source[.]" 20 C.F.R. § 404.1527(f)(1). Here, as discussed above, the ALJ provided no specific or legitimate reason why the opinions of Dr. Wiebe and NP Jehle were any less credible than the opinions of Dr. Kollath or the state non-examining consultants. Because the ALJ failed to explain why their opinions were inconsistent with the opinions of other medical experts in the record, the ALJ's decision was not supported by substantial evidence (as to Dr. Wiebe) or a germane reason (as to NP Jehle) and the ALJ erred by assigning their opinions less weight.
Third, the opinions of Dr. Wiebe and NP Jehle substantially support each other. During her comprehensive examination of the plaintiff, Dr. Wiebe found that the plaintiff had severe impairment in memory, moderate to severe impairments in attention and concentration, moderate impairments in language and visuo-spatial ability, and mild executive and sensory motor functioning impairments. These findings are consistent with NP Jehle's subsequent neurological imaging review, in which she found "extensive" damage to the plaintiff's brain, including: (1) evidence of diffuse axonal shear injury in the left cerebral hemisphere, (2) significant corpus-callosum atrophy, (3) white-matter atrophy associated with lateral-ventricular enlargement, (4) asymmetric left-hippocampal atrophy, and (5) small cystic changes in the left pons and bilateral cerebellar hemispheres, suggesting chronic lacunar infarcts. Conversely, the only substantial evidence supporting Dr. Kollath's opinion are the opinions of the state non-examining consultants. "The opinion of a non[-]examining physician cannot by itself constitute substantial evidence that justifies the rejection of the opinion of either an examining physician or a treating physician." Lester, 81 F.3d at 831(citing Pitzer v. Sullivan, 908 F.2d 502, 506 n.4 (9th Cir. 1990); Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984)).
AR 427-428.
AR 539.
In sum, the ALJ erred in weighing the medical evidence, and the court remands on this ground.
3. Whether the ALJ erred by Rejecting the Plaintiff's Testimony
The plaintiff contends that the ALJ failed to provide specific, clear, and convincing reasons to reject the plaintiff's testimony. The court remands on this ground.
Mot. - ECF No. 15 at 15.
In assessing a claimant's credibility, an ALJ must make two determinations. Molina, 674 F.3d at 1112 (9th Cir. 2012). "First, the ALJ must determine whether [the claimant has presented] 'objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged.'" Id. (quoting Vasquez, 572 F.3d at 591). Second, if the claimant produces that evidence, and "there is no evidence of malingering," the ALJ must provide "specific, clear and convincing reasons for" rejecting the claimant's testimony regarding the severity of the claimant's symptoms. Id. (cleaned up).
"At the same time, the ALJ is not 'required to believe every allegation of disabling pain, or else disability benefits would be available for the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).'" Id. (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). "Factors that an ALJ may consider in weighing a claimant's credibility include reputation for truthfulness, inconsistencies in testimony or between testimony and conduct, daily activities, and unexplained, or inadequately explained, failure to seek treatment or follow a prescribed course of treatment." Orn v. Astrue, 495 F.3d 625, 636 (9th Cir. 2007) (cleaned up). "[T]he ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints." Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014) (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)); see, e.g., Morris v. Colvin, No. 16-CV-00674-JSC, 2016 WL 7369300, at *12 (N.D. Cal. Dec. 20, 2016).
The ALJ held that the plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms. Thus, the ALJ must articulate specific, clear, and convincing reasons for rejecting the plaintiff's testimony regarding the severity of symptoms.
AR 23.
The ALJ discredited the plaintiff's testimony because it was "not entirely consistent with the medical evidence and other evidence in the record" and "the overall medical evidence of record indicates that the claimant is capable of performing basic work activities despite his various mental impairments." Because the court remands for reconsideration of the medical evidence, the court remands on this ground too. The ALJ can reassess the plaintiff's credibility on remand.
AR 24-25.
4. Whether the ALJ Erred by Improperly Assessing the Plaintiff's RFC
The plaintiff contends that the ALJ's assessment of his RFC was not supported by substantial evidence because it was "based on the improper foundation of primarily the opinions of the State agency non-examining consultants and Dr. Kollath at the expense of the records of Dr. Wiebe, NP Jehle, and Lifelong Medical Care." The ALJ determined the plaintiff to have an RFC to perform "work at all exertional levels with the following non-exertional limitations: work limited to simple as defined in the DOT as SVP levels 1 and 2, routine and repetitive tasks; work in a low-stress job as defined as having only occasional decision making and only occasional changes in the work setting and no interaction with the general public and work can be around co-workers throughout the day, but with only occasional interaction with co-workers." Because the court remands for reconsideration of the medical-opinion evidence, and because the RFC was based on the medical record, the court remands on this ground too.
Mot. - ECF No. 15 at 16.
AR 24.
5. Whether the Court Should Remand for Further Proceedings or Determination of Benefits
The court has "discretion to remand a case either for additional evidence and findings or for an award of benefits." McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002) (citing Smolen, 80 F.3d at 1292); McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989) ("The decision whether to remand for further proceedings or simply to award benefits is within the discretion of [the] court.") (citing Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987)). Generally, "'[i]f additional proceedings can remedy defects in the original administrative proceeding, a social security case should be remanded.'" Garrison, 759 F.3d at 1019 (quoting Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981)) (alteration in original); see also Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) ("Unless the district court concludes that further administrative proceedings would serve no useful purpose, it may not remand with a direction to provide benefits."); McCartey, 298 F.3d at 1077 (remand for award of benefits is discretionary); McAllister, 888 F.2d at 603 (remand for award of benefits is discretionary); Connett, 340 F.3d at 876 (finding that a reviewing court has "some flexibility" in deciding whether to remand).
Here, the court finds that remand is appropriate so as to "remedy defects in the original administrative proceeding." Garrison, 759 F.3d at 1019 (cleaned up).
CONCLUSION
The court grants the plaintiff's motion, denies the Commissioner's cross-motion, and remands for further proceedings consistent with this order.
IT IS SO ORDERED.
Dated: December 15, 2020
/s/_________
LAUREL BEELER
United States Magistrate Judge