Opinion
CV-23-00120-TUC-RCC (JR)
12-11-2023
Jamie Lynn Eddinger, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
HONORABLE JACQUELINE M. RATEAU, UNITED STATES MAGISTRATE JUDGE.
Plaintiff Jamie Lynn Eddinger (“Eddinger”) brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of a final decision by the Commissioner of the Social Security Administration (“Commissioner”). (Doc. 1.) The matter, on referral to the undersigned United States Magistrate Judge for Report and Recommendation, is ripe for decision. (Doc. 11, 16, 20.) As more fully set forth below, the Magistrate Judge recommends that the district court reverse the ALJ's decision and remand the matter for further proceedings.
BACKGROUND
Procedural History
On July 6, 2020, Eddinger protectively filed an application for supplemental security income (“SSI”) alleging a disability onset date of June 30, 2020. (Administrative Record “AR” 172-181.) Eddinger's claim was denied initially on August 12, 2020 and on reconsideration on December 16, 2020. (AR 48-60 (initial denial), AR 63-83 (reconsideration denial).) A hearing was held before an Administrative Law Judge (“ALJ”) on July 26, 2021. (AR 34-47.) In a decision dated February 24, 2022 the ALJ determined Eddinger was not disabled. (AR 16-28.) On January 24, 2023, the Appeals Council denied review thus making the ALJ's decision final for judicial review. (AR 1-6.) See 42 U.S.C. §§ 405(g), 1383(c)(3).
Relevant Factual Background
Eddinger previously received SSI benefits for almost ten years. (AR 51.) In August 2009, the Social Security Administration found that Eddinger met listing 12.04 for Depressive, Bipolar and Related Disorders. Id. She lost her SSI benefits in 2019 when she was institutionalized at the Carswell Federal Medical Center, a medical facility operated by the Federal Bureau of Prisons for female inmates with mental health needs. (AR 561.)Eddinger reported that she completed one year of college in 1991 and she has no past relevant work. (AR 196-97, 199-200.)
In mid-2019, Eddinger was found incompetent to stand trial and was institutionalized in Carswell Federal Medical Center. (AR 937-951.) She received psychiatric treatment and medication while institutionalized but continued to experience psychiatric symptoms. (AR 390-637.)
Eddinger also reported only attending school through the 9th grade and she also reported, and then retracted, that she obtained a GED. (AR 940.)
Mental health treatment records from COPE Community Services, Inc. (“COPE”) for November 2018 through April 2019 document Eddinger's diagnosis as schizophrenia, opioid abuse and cocaine abuse. (AR 659-674.) In a November 19, 2018 record, Eddinger is recorded as behaving erratically, wandering off topic, using profanity and displaying mood swings. (AR 659.) On November 20, 2018, Eddinger is recorded as wanting to start suboxone services but first having to taper off the prescribed opiates that she is on while she is receiving inpatient services at Sapphire skilled nursing facility. (AR 660.) On November 26, 2018, Eddinger is recorded as “yelling and ask[ing] when she can schedule for suboxone services.” (AR 662.)
This is before the alleged onset date in this case. The Court includes this factual background in order to provide a comprehensive mental health history.
On November 29, 2018, Eddinger is recorded as advising her provider that she left Sapphire and “needs to begin suboxone soon.” (AR 663.) That day Eddinger presented as a walk-in at COPE. (AR 664.) She is recorded as appearing anxious and fidgeting with closed body language. Id. She reported that she was not supposed to be released from Sapphire until December 6, 2018 but that her doctor medically cleared her. Id. She reported having no psychiatric medication and does not feel that she can wait until January 24, 2019 to receive treatment. Id. She was advised to come back to COPE on December 3, 2019 as a walk-in. Id. Efforts to coordinate care for Eddinger from December 18, 2018 through April 10, 2019 were largely unsuccessful. (AR 665-674.)
On July 1, 2020, Eddinger had a telehealth visit at COPE with Shereen Shoulders, MSL (“MSL Shoulders”). (AR 675.) This record documents a “history of visual and auditory hallucinations.” Id. Eddinger reported that her “depression and anxiety [has] occur[ed] weekly for many years.” Id. Eddinger was “recommended and [she] accepted case management, psychiatric services [and] medical management.” Id.
On July 13, 2020, Eddinger had an outpatient visit with Jennifer Budd, NP (“NP Budd”) to receive mental health care and a psychiatric medication refill. (AR 796-798.) She is recorded as reporting that her medications are helpful with no side effects and “[n]o SI/HI/AH/V[H].” (AR 796.) Her medications are recorded as Benztropine 1 mg and Olanzapine 20 mg. (AR 797.) She was assessed with mood instability, depression, and anxiety without medication. Id. She was diagnosed with schizophrenia and opioid use, unspecified, with withdrawal. Id.
COPE records from July 16, 2020 through September 17, 2020, record Eddinger's participation in group therapy, such as substance abuse recovery group and relapse prevention group, and her participation with COPE employment specialists. (AR 679-708.)
On September 21, 2020, Eddinger participated in a behavioral health telehealth visit with Nancy Schaefer, MSL (“MSL Schaefer”). (AR 709.) Eddinger is recorded as feeling depressed due to her son that lives in Texas being missing for three months. Id. She is recorded as reportedly not leaving the house, discouraged about not being able to get a job, and that her goal is to stay sober and not struggle with staying sober. Id. She reports that her children help her and that a barrier to her recovery is her depression. Id.
On September 22, 2020, Eddinger had a behavioral health therapy session via telehealth with Jennifer Barnes, MSL (“MSL Barnes”). (AR 710.) Eddinger is recorded as feeling more symptomatic and having feelings of being “over emotional and depressed.” Id.
At a September 28, 2020 relapse prevention group meeting via ZOOM, Eddinger is recorded as being talkative, communicating clearly, and giving appropriate feedback to peers. (AR 712.) She is recorded as reporting that she lives with bipolar and that her depression “can be very bad at times, meds do not work well, uses gratitude for recovery and her dogs to lessen depression.” Id. She reported that she misses her son and plans to visit her daughter. Id.
At an October 5, 2020 group behavioral health counseling session via telehealth, Eddinger reported that she still has trouble sleeping and has a lot of anxiety. (AR 713.) On October 12, 2020, at a group behavioral health visit via telehealth, Eddinger reported having depression symptoms. (AR 715.) On October 26, 2020, Eddinger participated in her relapse prevention group via ZOOM led MSL Schaefer. (AR 718.) She is recorded as reporting that her depression has lessened, that she had a panic attack when she tried to leave the house, that she started a new medication and is hopeful that it will help. Id.
On October 23, 2020, Eddinger had a “psychiatric diagnostic evaluation with medical service” with NP Budd. (AR 813-15.) NP Budd records Eddinger as reporting that, “[h]er symptoms have worsened despite taking meds. She reports AH/VH/paranoia, depression, anxiety, racing thoughts, lack of motivation, poor ADL's, worry and insomnia.” (AR 813.) She is recorded as reporting “the voices make it difficult with wanting to leave the house or interact with others.” Id. She is recorded as having poor judgment, suffering delusions (paranoia), suffering audio and visual hallucinations and having poor insight. (AR 814.) She was started on Risperdal 2mg for mood instability and continued on her other medications. (AR 815.) Her diagnoses were listed as chronic with mild exacerbation. Id.
On November 2, 2020, Eddinger participated in group behavioral health counseling and therapy via ZOOM with MSL Schaefer. (AR 721.) She is recorded as being talkative, participating in discussions and giving appropriate feedback. Id. She is recorded as reporting that her new “psych med working well and less depressed, is a loner and does not trust people but knows it would be good to have friends for support, hopes to meet people in AA or NA, would like to find sober people who like to hike/bike/camp.” Id.
On November 30, 2020, Eddinger participated in an “ART meeting” via telehealth with MSL Barnes. (AR 725.) Eddinger is recorded as being excited for Thanksgiving and that she is going to take an online class “to become a volunteer at the Humane Society to be a dog walker[.]” Id.
On December 1, 2020, NP Budd saw Eddinger for medication management and mood instability. (AR 799-801.) Eddinger is recorded as struggling with sleep, sleeping two to four hours a night, and suffering racing thoughts. (AR 799.) Eddinger's judgment is recorded as fair. Id. Her Risperidone was increased to 3 mg. (AR 800.) Her schizophrenia is noted as worsening and her global risk assessment is noted as moderate. Id.
On December 17, 2020, Eddinger participated in a telehealth case management appointment with MSL Barnes. (AR 726.) Eddinger reported that she completed the final test for the Humane Society and “will start volunteering soon hopefully and is just waiting on a call.” Id.
On January 14, 2021, Eddinger participated in individual behavioral health counseling and therapy via telehealth with MSL Barnes. (AR 732.) She is recorded as feeling good “but restless” and that she is “trying to start volunteering with the Humane Society.” Id.
On January 28, 2021, Eddinger had an individual behavioral health counseling and therapy session via telehealth with Cassandra Swenson, LAC (“LAC Swenson”). (AR 734.) She is recorded as having a pleasant mood but was tearful at times when discussing her past behaviors as a heroin addict. Id. Eddinger's goals are recorded as wanting to leave the house, trust others, reduce her hallucinations, and forgive herself for her past. Id. At a January 28, 2021 “ART meeting” via telehealth, Edinger is recorded as informing MSL Barnes about “volunteering with the Humane Society.” (AR 735.) Eddinger will be finishing the volunteer training program with a dog class and a cat class. Id. Eddinger is recorded as reporting that she would like to have her medications adjusted because “they are not working well and she isn[‘]t sleeping and her hallucinations are getting worse.” Id.
On February 11, 2021, Eddinger participated in individual behavioral health counseling and therapy via telehealth with MSL Barnes. (AR 739.) She is recorded as reporting that she is doing well. Id. She reported completing the Humane Society's cat class but the volunteer director did not think she had completed the cat class so she was unable to volunteer at “the big event at Parks (sic) Place.” Id. She reported that she did volunteer with the dogs “and loved it.” Id.
On February 25, 2021, Eddinger had an individual behavioral health counseling and therapy session via telehealth with LAC Swenson. (AR 741.) Eddinger is recorded as believing that her anti-psychotic medication is no longer working as her hallucinations and delusions have increased. Id. She is also recorded as feeling positive due to her grandson being born. Id. Eddinger is recorded as reportedly “hearing music coming from the walls and seeing people outside.” Id.
On March 4, 2021, Eddinger presented as a walk-in to see NP Budd due to increased auditory hallucinations and racing thoughts as well as anxiety related to the increasing auditory hallucinations. (AR 804-06.) Her Risperidone was increased to 4 mg. (AR 805.) Eddinger is recorded as suffering delusions (paranoia), auditory hallucinations, her mood is recorded as anxious and her judgment is recorded as poor. (AR 804.) She was assessed with increased “AH/paranoia, racing thoughts, mood swings, anxiety.” (AR 806.)
On March 10, 2021, Eddinger had an individual behavioral health counseling and therapy session via telehealth with MLS Barnes. (AR 744.) She reported doing well and that she was looking forward to the birth of her grandson. Id. She is recorded as stating that she is in a good place and that she was discussing “volunteering and her family.” Id.
On March 28, 2021, Eddinger had a mental health assessment via telehealth with MSL Barnes. (AR 748.) She is recorded as reporting that she struggled spending the night at home alone when her daughter was at the hospital to give birth and that she heard music coming from the walls and saw spiders everywhere. Id.
In an April 8, 2021 case management note, Eddinger is recorded a experiencing a reduction in hallucinations since having her medications increased. (AR 751.) At an April 29, 2021 telephonic case management session with MSL Barnes, Eddinger is recorded as having moved back in with her son and that “she is going to start volunteering again [at] the human[e] society.” (AR 754.)
At her May 11, 2021 individual behavioral health visit via telehealth with LAC Swenson, Eddinger reported an improvement in hallucinations by 50% although she continued to experience hallucinations. (AR 756.) She is recorded as stating that she still relies on her children to “do reality checking around hallucinations.” Id.
Hearing Testimony
Eddinger testified that she volunteered at the Humane Society two times. (AR 38.) She testified that she had to stop because of her feet. Id. She also testified, “I had to stop because I was having anxiety and a lot of - - I was hearing a lot of things and seeing a lot of hallucinations. My meds weren't really working at that point.” (AR 39.) Eddinger denied volunteer work other than with the Humane Society. Id.
She testified that the amount of hallucinations she has depends upon her stress level. Id. She testified that after speaking with her nurse practitioner about her hallucinations she was advised that the medication is working ‘probably as good as [she is] going to get [them] to work.” Id. Her medications have decreased her hallucinations “a little bit.” Id. She testified that since June 30, 2020 she has hallucinated at least once a week and sometimes two or three times a week. (AR 43.)
She testified to having “major anxiety” about leaving the house. (AR 39.) Her hallucinations are also much worse when she leaves the house. (AR 43.) When she goes outside she sees people on the street “all the time, and they're following [her] everywhere [she] go[es], and [she does not] like that.” (AR 39-40.) She testified to asking “Autumn and Adrian”[5] if they see the people that she sees. (AR 40, 43.)
She testified that she does not go grocery shopping. (AR 42.) She does not like going to the grocery store because there are too many people and “they're all staring” at her and “talking about” her. Id. She is unable to take public transportation. (AR 42.) She testified:
I do not go on the bus. Do you know how many people are on the bus? And they all have stuff that they're doing, but it's not the right stuff. They want you to go with them places. It's not safe to take the bus at all. There's too many people, and even the bus driver, he doesn't take you where you are supposed to go, he takes you where he wants to go.Id. She took the bus one time in the last year and she had to call her son when she got off the bus because she got scared. Id. She got scared because people were talking about her and kept telling the bus driver where she needed to go but the bus driver was not taking her where she needed to go. (AR 42-43.) Eddinger testified that the bus driver “was taking me where he wanted me to go, and I didn't want to go where he wanted me to go. I wanted to go where I wanted to go.” (AR 43.)
The ALJ's Decision
At step one, the ALJ determined that Eddinger had not engaged in substantial gainful activity since June 30, 2020, the application date. (AR 18.) At step two, the ALJ determined that Eddinger suffered from the severe impairments of paranoid schizophrenia and unspecified bipolar disorder. Id. At step three, the ALJ determined Eddinger did not suffer from an impairment or combination of impairments that met or equaled a listed impairment. (AR 19.) After step three but before step four, the ALJ determined Eddinger's residual functional capacity (“RFC”) as follows:
[T]he claimant has the [RFC] to perform a full range of work at all exertional levels but with the following nonexertional limitations: Claimant would have moderate difficulty with more detailed instructions, but would be capable of
recalling 1-2 step tasks on a consistent basis; can perform 1-2 step tasks on a consistent, productive basis across a routine work day and week; would benefit from low social demand in the workplace i.e., no necessary contact with the general public or customers; and would benefit from a more stable work setting.(AR 21.) At step four, the ALJ determined that Eddinger had no past relevant work. (AR 26.) At step five, based on vocation expert (VE) testimony, the ALJ found Eddinger able to perform other work that exists in significant numbers in the national economy such as agricultural produce sorter, hand packager, and laundry laborer. (AR 27.)
ISSUES ON REVIEW
Eddinger raises two issues for review. (Doc. 16 at 2.) First, she claims that the ALJ failed to properly evaluate and weigh the medical opinions of record. Id. Second, she claims that the RFC is not supported by substantial evidence but is the result of “a cherry-picked and factually inaccurate interpretation of the [r]ecord.” Id. The Commissioner defends the ALJ's decision. (Doc. 20.) As more fully explained below, this Court agrees with Eddinger on her first claim of error. This Court does not reach Eddinger's second claim of error.
Eddinger's SSI application reflects that Arian Eddinger and Autumn Stutz rent the home where Eddinger lives. (AR 174.)
LEGAL STANDARD
An ALJ's disability determination should be upheld unless it contains legal error or is not supported by substantial evidence. Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (citing Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006), 42 U.S.C. §§ 405(g), 1383(c)(3)). “‘Substantial evidence' means more than a mere scintilla, but less than a preponderance; it is such relevant evidence as a reasonable person might accept as adequate to support a conclusion.” Garrison, 759 F.3d at 1009 (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)). “[The court] must consider the entire record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion, and may not affirm simply by isolating a specific quantum of supporting evidence.” Garrison, 759 F.3d at 1010 (quoting Lingenfelter, 504 F.3d at 1035). (citations and quotation marks omitted). “The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities.” Garrison, 759 F.3d at 1010 (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). Where “the evidence can reasonably support either affirming or reversing a decision, we may not substitute our judgment for that of the [ALJ].” Garrison, 759 F.3d at 1010 (quoting Andrews, 53 F.3d at, 1039). (citation omitted). The court only reviews the reason(s) provided by the ALJ in the disability determination and may not affirm the ALJ on a ground upon which he did not rely. Garrison, 759 F.3d at 1010 (citing Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)).
ANALYSIS
The United States Court of Appeals for the Ninth Circuit has emphasized that “[c]ycles of improvement and debilitating symptoms are a common occurrence [in individuals with mental health conditions], and in such circumstances it is error for an ALJ to pick out a few isolated instances of improvement over a period of months or years and to treat them as a basis for concluding a claimant is capable of working.” Garrison, 759 F.3d at 1017 (citing Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001) (holding that “[the treating physician's] statements must be read in context of the overall diagnostic picture he draws. That a person who suffers from severe panic attacks, anxiety, and depression makes some improvement does not mean that the person's impairments no longer seriously affect her ability to function in a workplace.”)). Garrison cautions that “[r]eports of ‘improvement' in the context of mental health issues must be interpreted with an understanding of the patient's overall well-being and the nature of her symptoms.” Garrison, 759 F.3d at 1017 (citing RyanComm'r. of Soc. Sec., 528 F.3d 1194, 1200-01 (9th Cir. 2008) (recognizing that “[n]or are the references in [a doctor's] notes that Ryan's anxiety and depression were ‘improving' sufficient to undermine the repeated diagnosis of those conditions, or [another doctor's] more detailed report.”)). Garrison instructs that reports of improvement “must also be interpreted with an awareness that improved functioning while being treated and while limiting environmental stressors does not always mean that a claimant can function effectively in a workplace.” Garrison, 759 F.3d at 1017 (citing Hutsell v. Massanari, 259 F.3d 707, 712 (9th Cir. 2001) (“We also believe that the Commissioner erroneously relied too heavily on indications in the medical record that Hutsell was ‘doing well,' because 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.”)). The Ninth Circuit has instructed district courts and administrative law judges to use “[c]aution in making such an inference . . . when no doctor or other medical expert has opined, on the basis of a full review of all relevant records, that a mental health patient is capable of working or is prepared to return to work.” Garrison, 759 F.3d at 1017-18 (citing Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989) (“The ALJ's conclusion that Rodriguez was responding to treatment also does not provide a clear and convincing reason for disregarding Dr. Pettinger's opinion. No physician opined that any improvement would allow Rodriguez to return to work.”)). Bearing this framework in mind this Court examines the claimed error in the ALJ's consideration of the medical opinion evidence.
Consideration of Medical Opinion Evidence
Eddinger urges that the ALJ's reasons for rejecting the opinions of NP Budd and Noelle Rohen, Ph. D., are inadequate and include incorrect generalizations. (Doc. 16 at 11.) Eddinger also insists the ALJ erred in considering the opinion of Michael P. Christianson, Ph. D., the examining psychologist who, upon performing a competency evaluation in 2019 for Eddinger's criminal proceedings, found her incompetent to stand trial. Id. at 11-12. She urges that there is no evidence that her hallucinations improved such that she can engage in substantial gainful activity. Id. at 12. She points out that the ALJ's main reason for rejecting the examining medical opinions is “a lack of hallucinations in the record.” Id. In addition to urging that this is factually incorrect, Eddinger urges that “[hallucinations cannot be reported any other way than subjectively, and yet the evidence of hallucinations must be considered.” Id. (Emphasis in original.) The Commissioner argues that the ALJ's decision regarding the persuasiveness of each medical opinion of record is supported by substantial evidence. (Doc. 20 at 12-20.)
Under 20 C.F.R. § 404.1520c, the Commissioner “will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from [the claimant's] medical sources.” Lewis v. Comm'r of Soc. Sec. Admin., 625 F.Supp.3d 942, 946 (D. Ariz. 2022) (quoting 20 C.F.R. § 404.1520c(a)). Section 404.1520c, Title 20, C.F.R., further provides that when a medical source provides one or more medical opinions, the Commissioner will consider those medical opinions from that medical source together using the factors listed in paragraphs (c)(1) through (c)(5) of this section. Id. Those factors include: (1) supportability; (2) consistency; (3) relationship with the claimant, including the length of the treatment relationship, the frequency of examinations, purpose and extent of the treatment relationship, and the examining relationship; (4) specialization; and (5) any other factors that “tend to support or contradict a medical opinion or prior administrative medical finding.” 20 C.F.R. at § 404.1520c(c).
When evaluating the persuasiveness of a medical opinion, the most important factors are supportability and consistency. Id. at § 404.1520c(a). With respect to “supportability,” the regulations provide that “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be.” Id. at § 404.1520c(c)(1). With respect to “consistency,” the regulations provide that “[t]he more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.” Id. at § 404.1520c(c)(2). The ALJ must articulate her consideration of the medical opinion evidence, including how persuasive she finds the medical opinions in the case record. Id. at § 404.1520c(b). The ALJ must explain how she considered the “supportability” and “consistency” factors for a medical source's opinion. Id. at § 404.1520c(b)(2).
Dr. Christiansen June 2019 Report
In May 2019, Dr. Christiansen evaluated Eddinger regarding her competency to stand trial. (AR 938-51.) Eddinger scored a 24 out of 30 on the mini mental status examination. (AR 943.) Dr. Christiansen observed that Eddinger displayed several symptoms of mental illness, resulting in impairments in rational understanding, such that she was not competent to stand trial. (AR 947.) Dr. Christiansen noted that her symptoms were “normally treatable and responsive to medications.” (AR 947, 950.) Dr. Christiansen also noted that Eddinger reportedly recently started medication which could improve her capacity over time, but that she had not been on the medication long enough to receive maximum therapeutic benefit. (AR 947, 950.) Dr. Christiansen opined that Eddinger's competency might be dependent on abstinence from drug abuse and compliance with prescribed medication, and that there was a good likelihood Eddinger could be restored to competency within six to 12 months. (AR 951.)
See Augustine ex rel. Ramirez v. Astrue, 536 F.Supp.2d 1147, 1153 n.7 (C.D. Cal. 2008) (holding that “th[e] [c]ourt need not address the other claims plaintiff raises, none of which would provide plaintiff with any further relief than granted, and all of which can be addressed on remand”).
The ALJ did not find Dr. Christiansen's opinion persuasive. (AR 26.) The ALJ reasoned that Dr. Christiansen's evaluation was conduction “well prior” to the time period at issue. Id. The ALJ found that Dr. Christiansen noted that Eddinger had only then started medication and she had not been medicated long enough to ascertain the effectiveness of her medication treatment. Id. The ALJ also determined that Dr. Christiansen's opinion of “improved functioning with abstinence from drugs and medication compliant is wholly consistent with the treatment notes from COPE[.]” Id.
Supportability
The ALJ did not comment on the supportability of Dr. Christiansen's opinion. (AR 26.) Instead, the ALJ focused exclusively upon the consistency of Dr. Christiansen's opinion. Id. This Court finds that the ALJ's failure to make a finding regarding the supportability of Dr. Christiansen's opinion is erroneous. See 20 C.F.R. § 404.1520c(c)(2); Woods v. Kijakazi, 32 F.4th785, 792 (9th Cir. 2022) (“The agency must ‘articulate . . . how persuasive' it finds ‘all the medical opinions' from each doctor or other source and ‘explain how [it] considered the supportability and consistency factors' in reaching these findings.”)
Additionally, even though Dr. Christiansen's opinion was generated before the alleged onset date, an ALJ is still required to examine the opinion's supportability (and consistency). It is true that while medical opinions that predate the alleged onset of disability may be of limited relevance, see Carmickle v. Comm'r of Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th Cir. 2008), the regulations require the agency to consider all the medical opinions from each doctor or other source. See Woods, 32 F.4th at 792 (“The agency must ‘articulate . . . how persuasive' it finds ‘all the medical opinions' from each doctor or other source and ‘explain how [it] considered the supportability and consistency factors' in reaching these findings.”). See also, Williams v. Astrue, 493 Fed.Appx. 866, 868 (9th Cir. 2012) (holding under previously applicable regulations and precedent that ALJ erred in failing to consider physician's reports that predated alleged onset date).
Consistency
The ALJ found Dr. Christiansen's opinion “wholly consistent with the treatment notes from COPE” finding that the treatment notes from COPE “reflect a significant improvement in her symptoms.” (AR 26.) This Court finds the ALJ's conclusion that the COPE treatment notes “reflect a significant improvement” to be an exaggeration. While the COPE treatment notes reflect some improvement in the frequency of Eddinger's hallucinations, the treatment notes also reflect that Eddinger still experiences hallucinations. See, e.g., AR 756 (May 11, 2021 COPE treatment note stating that while Eddinger's hallucinations have decreased by 50%, she still relies on her children to “do reality checking around hallucinations”).
Eddinger has suffered with schizophrenia, depressive and bipolar related disorders since at least 2009 (when the Administration found she met listing 12.04 for her depressive, dipolar and related disorders). The ALJ's finding that the COPE treatment notes “reflect a significant improvement” is a broad generalization that lacks the nuanced approach to the evaluation of mental health conditions that Garrison requires. See Garrison, 759 F.3d at 1017 (holding that “[c]ycles of improvement and debilitating symptoms are a common occurrence [in claimant's with mental health conditions], and in such circumstances it is error for an ALJ to pick out a few isolated instances of improvement over a period of months or years and to treat them as a basis for concluding a claimant is capable of working.”). Garrison cautions that “[r]eports of ‘improvement' in the context of mental health issues must be interpreted with an understanding of the patient's overall well-being and the nature of her symptoms.” Garrison, 759 F.3d at 1017.
Also, Eddinger testified that while her medications do reduce the frequency of her hallucinations, she still experiences hallucinations weekly and that the frequency of her hallucinations increase with her stress level. As set forth above, in examining consistency an ALJ is required to consider evidence from both “other medical sources and nonmedical sources in the claim. . . [.]” See 20 C.F.R. § 404.1520c(c)(2). (emphasis added.) The ALJ also should have considered Eddinger's testimony that while her medications reduce her hallucinations, she still experiences hallucinations weekly and that the frequency of her hallucinations increase with her stress level.
In light of the foregoing, this Court finds that the ALJ's persuasiveness determination regarding Dr. Christiansen's opinion is not supported by substantial evidence.
Noelle Rohen, Ph. D., July 2009 Report
On July 20, 2009, Noelle Rohen, Ph. D., conducted a psychological examination on Eddinger at the request of the Arizona Department of Economic Security. (AR 301-04.) In her Psychological/Psychiatric Medical Source Statement dated August 2, 2009 Dr. Rohen opined, inter alia:
Memory processes impaired by acute psychosis.
Concentration impaired by high levels of agitation and acute psychosis. Persistence was inadequate for interview; though claimant remained physically present for the duration of the interview, responses were unhelpfully short in the interest of ended (sic) the interview as rapidly as possible. It appears the claimant has difficulty persisting in basic self-care tasks such as eating enough to avoid emaciated appearance, accomplishing regular hygiene/grooming, and following through with mental health care or social services.
Severely impaired at interview, by inadequate grooming, agitation, erratic behavior, and overall dramatic appearance of illness. Subjectively, she reports high levels of paranoia that preclude her engagement in society, and keep her from making use of available social services.(AR 304.)
The ALJ found that Dr. Rohen's 2009 report was remote and unpersuasive for the time period at issue. (AR 26.)
Supportability
The ALJ found that Dr. Rohen determined that Eddinger had an established history of primary psychiatric disorder and sufficiently poor functioning so as to endanger her health. (AR 26, citing AR 301-05.) Thus, the ALJ appears to have found Dr. Rohen's 2009 opinion supported by her findings.
Consistency
The ALJ did not comment on the consistency of Dr. Rohen's 2009 report. Instead, the ALJ summarily found Dr. Rohen's 2009 report “remote and unpersuasive for the period at issue.” Id. It is true that Dr. Rohen's 2009 report was generated a number of years prior the allege onset date. However, that Dr. Rohen's 2009 report was generated prior to the alleged onset date fails to speak to the 2009 report's consistency with the evidence of record from other medical and nonmedical sources. See Lewis, 625 F.Supp.3d at 946 (citing 20 C.F.R. § 404.1520c(c)(2) and recognizing that supportability examines evidence presented by the source, “[consistency examines the evidence from other medical and nonmedical sources.”). As mentioned, although medical opinions that predate the alleged onset of disability may be of limited relevance, the regulations require the agency to consider all the medical opinions from each doctor or other source. See Carmickle, 533 F.3d at 1156; Woods, 32 F.4th at 792. See also, Williams, 493 Fed.Appx. at 868 (holding ALJ erred in failing to consider physician's reports that predated alleged onset date). This Court finds that the ALJ erred in failing to consider, and make any finding regarding, the consistency of Dr. Rohen's 2009 report.
This Court finds that the ALJ's persuasiveness determination regarding Dr. Christiansen's 2009 report is not supported by substantial evidence.
Dr. Rohen August 2020 Report
On August 11, 2020, Dr. Rohen performed a video consultative examination on Eddinger. (AR 931-35.) Eddinger was recorded as pleasant and cooperative and scoring a 24 out of 30 on the mini mental status examination. (AR 933.) Dr. Rohen assessed Eddinger's understanding and memory as appearing grossly intact. (AR 935.) Dr. Rohen determined that attention lapses on the mini mental status examination suggested that there might be lapses at work. Id. Dr. Rohen opined:
Additional lapses see on MMSE suggest there may be lapses at work. This is anticipated to be a considerable area of impairment if hallucinations remain active and unmanaged. Persistence may be negatively impacted by what looks to be a severe depression. ...
Claimant can appropriately dress, groom, and relate at interview other than depressive emoting. Given her expressions of paranoia, she may have difficulty staying in a place in which she has decided people may be a threat. ...
Claimant can learn new tasks and avoid hazards, but with her complaints of anxiety, will overestimate the level of threat in her environment.(AR 935.)
Dr. Rohen December 2020 Report
On December 13, 2020, Dr. Rohen examined Eddinger in person. (AR 384-88.) Dr. Rohen recorded Eddinger as pleasant and cooperative with retrograde memory appearing decent and an average fund of knowledge. (AR 386.) Her mini mental status examination result improved to 28 out of 30. Id. Dr. Rohen opined:
Claimant was distractible during the interview, on ruminations about her case.
Persistence was subpar on MMSE tasks she found challenging, or possibly embarrassing, but she responded to encouragement. Writer anticipates difficulty focusing to complete tasks as long as AH is an issue.
...
Claimant can appropriately dress and groom. She is pleasant and spontaneous, but[] hyperverbose conversation-dominating, and sufficiently agitated as to raise questions. It may be difficult to get her to attend a job regularly if she has to work among the public.
...
Claimant can learn new tasks and avoid hazards, but with her complaints of anxiety, may be happier and more resistant to relapse or recidivism in a lower demand and more static position.(AR 388.)
The ALJ found Dr. Rohen's August and December 2020 opinions “partially persuasive.” (AR 26.) The ALJ did not explain which of Dr. Rohen's opinions he found persuasive and which opinions he did not find persuasive. Id. Supportability
The ALJ found that Dr. Rohen's 2020 opinions are generally supported by clinical interview, mini mental status exam, and her observations. Id. However, the ALJ concluded that Dr. Rohen's reliance upon Eddinger's subjective reports of frequency of hallucinations “are not supported by the longitudinal treatment records[.]” Id. As mentioned, supportability examines the evidence presented by the source of the medical opinion. See Lewis, 625 F.Supp.3d at 946 (recognizing that supportability examines evidence presented by the source). It is consistency that examines the evidence from other medical and nonmedical sources. Id. (recognizing that “[consistency examines the evidence from other medical and nonmedical sources.”). This Court finds that the ALJ erroneously conflated the supportability and consistency factors of 20 C.F.R. § 404.1520c(c)(2) in his consideration of Dr. Rohen's 2020 reports.
Accordingly, this Court finds that the ALJ's “partially persuasive” determination regarding Dr. Rohen's 2020 opinions is not supported by substantial evidence.
NP Budd August 2021 Medical Source Statement
In August 2021, NP Budd provided a medical source statement regarding Eddinger's limitations. (AR 897.) NP Budd provided a primary diagnosis of schizophrenia and noted that Eddinger was taking Benztropine 1 mg, Mirtazapine 15 mg, and Risperidone 4 mg. Id. NP Budd opined that Eddinger was unable to meet competitive standards in multiple domains of unskilled work. (AR 899-900.) NP Budd opined that Eddinger suffers severe anxiety and would have difficulty with concentration, focus, and regular attendance at work. (AR 900.) NP Budd opined that Eddinger would be off-task 25% or more per workday and would be absent from work more than 4 days per month. (AR 901-02.)
The ALJ found NP Budd's opinion “not fully persuasive.” (AR 25.) The ALJ did not explain which of NP Budd's opinions he found persuasive and which of NP Budd's opinions he did not find persuasive. Id. The ALJ found NP Budd's opined limitations inconsistent with her treatment notes and the longitudinal treatment records for the period in issue. Id.
Supportability
The ALJ did not comment on the supportability of NP Budd's opinion. (AR 24-25.) Instead, the ALJ focused upon the consistency of NP Budd's opinion. Id. This Court finds that the ALJ's failure to determine the supportability of NP Budd's opinion is erroneous. See 20 C.F.R. § 404.1520c(c)(2); Woods, 32 F.4that 792 (recognizing that “[t]he agency must ‘articulate . . . how persuasive' it finds ‘all the medical opinions' from each doctor or other source and ‘explain how [it] considered the supportability and consistency factors' in reaching these findings.”)
Consistency
The ALJ found NP Budd's opined limitations inconsistent with “her own treatment records[8] or the longitudinal treatment records for the period under consideration[ ].” (AR 25.) In reaching this determination the ALJ relied on select COPE records to the exclusion of others. As set forth above in the section regarding the ALJ's treatment of Dr. Christiansen's 2019 opinion, while the COPE treatment notes reflect some improvement in the frequency of Eddinger's hallucinations, the COPE treatment notes also reflect that Eddinger still experiences hallucinations. See, e.g., AR 756 (May 11, 2011 COPE treatment note stating, inter alia, that hallucinations have decreased by 50%”). The ALJ also neglected to consider Eddinger's testimony that she continues to suffer hallucinations and that she had to stop her volunteer efforts with the Humane Society as a result of her anxiety. The ALJ should have considered Eddinger's testimony in his consistency determination. See 20 C.F.R. § 404.1520c(c)(2) (requiring an ALJ to consider evidence from both “other medical sources and nonmedical sources in the claim. . . [.]”)
The ALJ also determined that “during the aforementioned period claimant, even despite reported hearing some voices, was actively participating in group [therapy], volunteering at the Humane Society, and applying for jobs (and was apparently hired as a caretaker) and assisting with the care of her grandchild.” Id. However, the ALJ failed to articulate how Eddinger's hearing voices is inconsistent with her participation in group therapy. The record reflects that Eddinger participated in group therapy remotely. As Eddinger primarily reported experiencing hallucinations when she was outside the home and that she is fearful of leaving her home, it is understandable that she could participate in group therapy remotely.
The ALJ also misconstrues Eddinger's level of volunteering with the Humane Society. The record supports a finding that Eddinger completed the online training required to participate as a Humane Society volunteer and that she volunteered two times. The record does not support a finding, as the ALJ made in this case, that she repeatedly volunteered at the Humane Society. Moreover, Eddinger testified that she had to stop her Humane Society volunteering because of her anxiety and due to her feet. Eddinger's testimony that she stopped volunteering due to her anxiety must be considered in the ALJ's consistency determination.
The ALJ's finding that Eddinger had “apparently” been hired as a caretaker is supported by a single group therapy telehealth record dated August 3, 2020. (AR 690.) In this August 3, 2020 record, Eddinger is recorded as having “began working as a caregiver.” Id. This Court has not found corroborating support for the ALJ's finding that Eddinger was “apparently” hired as a caregiver. For instance, there are no earnings records to support that Eddinger was hired and was paid for working a caregiver for any length of time. Additionally, subsequent COPE group therapy records reflect that Eddinger continued to carry a “diagnosis” of “unemployment.” See, e.g., AR 691 (August 3, 2020 COPE note); 693 (August 7, 2020 COPE note); 694 (August 10, 2020 COPE note), 695 (August 11, 2020 COPE note), 696 (August 17, 2020 COPE note), 697 (August 24, 2020 COPE note). Also, Eddinger testified to not working in 17 to 18 years and her testimony must be considered in conjunction with the other evidence of record in a consistency determination. (AR 43.)
Lastly, while Eddinger moved in with her daughter to help with the birth of her grandchild, the record does not contain evidence of the level of assistance that she provided to her daughter. She also moved out of her daughter's home to give her daughter and son in law space to be a family without her. (AR 752.) Moreover, the record contains evidence that Eddinger's children provide her with assistance and that she relies on them to help her when she believes she is experiencing hallucinations. See, e.g., AR 41, 43 (Eddinger's testimony), 709 (September 21, 2020 COPE record stating, inter alia, that she is “helped by her children”), 756 (May 11, 2021 COPE record that Eddinger relies on her children to “reality check” her when she thinks she is experiencing hallucinations).
For these reasons, this Court finds that the ALJ's not fully persuasive determination regarding NP Budd's opinion is not supported by substantial evidence.
Harmless Error
As discussed above, this Court finds the ALJ's persuasive determinations with respect to Dr. Christiansen's, Dr. Rohen's, and NP Budd's opinions are not supported by substantial evidence. This Court finds that these errors are harmful because this Court cannot confidently conclude that no reasonable ALJ, when fully crediting Dr. Christiansen's, Dr. Rohen's, and NP Budd's opinions, could have reached a different conclusion. See Lewis, 625 F.Supp.3d at 950 (holding that “a reviewing court cannot consider the error harmless unless it can confidently conclude that no reasonable ALJ, when fully crediting the testimony, could have reached a different disability determination” (citing Stout, 454 F.3d at 1056)).
Remand is Appropriate
Upon finding the ALJ committed reversible error, the district court has the discretion to remand or reverse and award benefits. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). “Where . . . an ALJ makes a legal error, but the record is uncertain and ambiguous, the proper approach is to remand the case to the agency.” Treichler v. Comm 'r of Social Sec. Admin., 775 F.3d 1090, 1105 (9th Cir. 2014); see also Garrison, 759 F.3d at 1021. Eddinger seeks remand for further proceedings. (Doc. 16 at 18.)
A score of 21-24 suggests mild dementia. See https://www.caring.com/examinations/what-does-your-mmse-score-mean/24 (last visited December 6, 2013).
This Court determines that remand to the Commissioner is appropriate so that the ALJ can consider, in the first instance, both the supportability and consistency of all the medical opinions of record in accordance with 20 C.F.R. § 404.1520c. On remand, the ALJ will also address Eddinger's objection that the RFC formulation is not supported by substantial evidence.
RECOMMENDATION
For the foregoing reasons, it is RECOMMENDED that the district court REVERSE the decision of the Administrative Law Judge and REMAND the matter to the Commissioner for further administrative proceedings. Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file written objections within fourteen days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply brief shall be filed on objections unless leave is granted by the District Court. If objections are not timely filed, they may be deemed waived. If objections are filed, the parties should use the following case number: 4:23-cv-120-RCC.