Opinion
3:19-cv-01191-JR
02-24-2022
RAYMOND ROY Z., [1]Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.
FINDINGS AND RECOMMENDATION
JOLIE A. RUSSO, UNITED STATES MAGISTRATE JUDGE
Plaintiff Raymond Z. brings this action for judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying his application for Title II Disability Insurance Benefits. For the reasons set forth below, the Commissioner's decision should be reversed, and this case should be remanded for further proceedings.
BACKGROUND
Born in 1964, plaintiff alleges disability beginning April 25, 2017, due to post-traumatic stress disorder (“PTSD”), anxiety, depression, and chronic sleep impairment. Tr. 182-83. On October 17, 2018, a hearing was held before an Administrative Law Judge (“ALJ”), wherein plaintiff appeared pro se. Tr. 28-56. On January 30, 2019, the ALJ issued a decision finding plaintiff “not disabled.” Tr. 12-21. After the Appeals Council denied his timely request for review, plaintiff filed a complaint in this Court. Tr. 1-6.
THE ALJ'S FINDINGS
At step one of the five step sequential evaluation process, the ALJ found that plaintiff had not engaged in substantial gainful activity since the alleged onset date. Tr. 14. At step two, the ALJ determined the following impairments were medically determinable and severe: “PTSD, anxiety and depression.” Id. At step three, the ALJ found that plaintiff's impairments, either singly or in combination, did not meet or equal the requirements of a listed impairment. Tr. 15.
Because plaintiff did not establish presumptive disability at step three, the ALJ continued to evaluate how plaintiff's impairments affected his ability to work. The ALJ found that plaintiff had the residual functional capacity (“RFC”) to perform a full range of work at all exertional levels except he was limited to work “with a reasoning level of 2, ” “simple routine and repetitive tasks, ” and “simple work-related decisions, ” and occasional coworker and public contact. Tr. 16, 50.
At step four, the ALJ determined plaintiff was unable to perform any past relevant work. Tr. 19. At step five, the ALJ concluded, based on the vocational expert's (“VE”) testimony, that plaintiff could perform a significant number of jobs in the national economy despite his impairments, such as janitor, laboratory helper, and warehouse worker. Tr. 20.
DISCUSSION
This case initially hinges on whether plaintiff's new evidence meets the threshold of materiality to trigger reversal under sentence six of 42 U.S.C. § 405(g). Alternatively, plaintiff argues the ALJ erred by rejecting: (1) his subjective symptom testimony; and (2) the medical opinions of examining Doctor James M. Mours, Psy.D., and treating mental health counselor Joseph Talik.
I. New Evidence
Plaintiff asserts remand is warranted for the consideration of new evidence from the Veterans Administration (“VA”) and plaintiff's former employer, Mackay Mitchell Envelope Company. Pl.'s Reply Br. 10 (doc. 56). Remand for consideration of evidence outside the administrative record is appropriate if that evidence is material and good cause for the “failure to incorporate such evidence into the record in a prior proceeding” exists. Mayes v. Massanari, 276 F.3d 453, 461-62 (9th Cir. 2000). New evidence is “material” if it “bears directly and substantially on the matter in dispute, ” and “there is a reasonable possibility that the new evidence would have changed the outcome of the determination.” Booz v. Sec'y of Health & Human Servs., 734 F.2d 1378, 1380 (9th Cir. 1984).
Plaintiff's new evidence consists of a series of VA examinations, treatment records from Mr. Talik, and a disciplinary notice from Mackay Mitchell. Gabin Decl. Exs. 1-4 (doc. 47). All evidence provided predates the alleged onset date of April 25, 2017. Id. The Commissioner concedes plaintiff has shown good cause for the failure to present this evidence to the ALJ earlier. Def.'s Resp. Br. 17 (doc. 52). At issue is whether the evidence is material.
The Court finds that, because the evidence originated prior to April 25, 2017, and does not demonstrate a reasonable possibility of altering the ALJ's decision, a sentence six remand is not warranted. Notably, Mr. Talik's counseling notes document weekly sessions from September to November 2016. Gabin Decl. Ex. 4 (doc. 47); see also Carmickle v. Comm'r, Soc. Sec. Admin., 553 F.3d 1155, 1165 (9th Cir. 2008) (medical evidence that predates the alleged onset of disability is “of limited relevance”). The VA examination from July 2013 is well outside the adjudication period. Gabin Decl. Ex. 2 (doc. 47). The disciplinary infraction from MacKay Mitchell is dated May 16, 2016, and plaintiff continued to work for 11 months after the infraction. Tr. 182.
While more recent, the VA evaluation from March 2017 with Landon Michaels, Psy.D., still precedes the alleged onset date and, moreover, plaintiff was working at substantial gainful levels at this time. Gabin Decl. Ex. 3 (doc. 47). Further, because the information contained in the March 2017 evaluation is largely duplicative of subsequent medical opinions in the record, plaintiff has not shown that this evidence would have changed the ALJ's decision. Booz, 734 F.2d at 1380. The new evidence is thus not material.
Although Dr. Michaels did not opine that plaintiff was unable to work or identify any concrete work-related restrictions, he did diagnose plaintiff with PTSD and indicate that plaintiff's psychological symptoms were beginning to interfere with his occupational functioning. Gabin Decl. Ex. 3 (doc. 47).
II. Plaintiff's Testimony
Plaintiff contends the ALJ erred by discrediting his subjective symptom testimony. Pl.'s Opening Br. 8 (doc. 45). When a claimant has medically documented impairments that could reasonably be expected to produce some degree of the symptoms complained of, and the record contains no affirmative evidence of malingering, “the ALJ can reject the claimant's testimony about the severity of . . . symptoms only by offering specific, clear and convincing reasons for doing so.” Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). The reasons proffered must be “sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony.” Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (internal citation omitted).
Thus, in formulating the RFC, the ALJ is not tasked with “examining an individual's character” or propensity for truthfulness, and instead assesses whether the claimant's subjective symptom statements are consistent with the record. SSR 16-3p, available at 2016 WL 1119029. If the ALJ's finding regarding the claimant's subjective symptom testimony is “supported by substantial evidence in the record, [the court] may not engage in second-guessing.” Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002).
At the hearing, plaintiff testified he was laid off from his job as a machine adjuster in April 2017. Tr 39-41. Plaintiff suspected he was terminated due to problems with his anger, attendance, memory lapses, and working with supervisors. Tr. 40, 42-43. According to plaintiff, his supervisors “did some really idiotic things that just wasn't right.” Id. Plaintiff explained that Mackay Mitchell did not ask him to return to work, even though he knew other people had been asked to return to work. Tr. 43-44.
Plaintiff endorsed chronic fatigue related to “occasional nightmares” stemming from “bad experiences in the military” that led to “troubles with attendance” at work. Tr. 40. Plaintiff also experienced memory issues while operating machinery at Mackay Mitchell: “it was frustrating for me knowing that some of the stuff that I couldn't remember, it's the simple stuff that, I mean, I've done for years.” Tr. 42-44. Plaintiff further testified that he isolates from everyone except his family and does “not really” go anywhere besides his counselor's office on a regular basis. Tr. 48.
After summarizing his hearing testimony, the ALJ concluded that plaintiff's medically determinable impairments could reasonably be expected to produce some degree of symptoms, but his “statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.” Tr. 17. The ALJ cited to plaintiff's employment records over the past two decades, which indicated “he was able to work for many years despite his symptoms, ” as well his failure to “seek more than monthly therapy sessions or mental health medication.” Tr. 18. Finally, the ALJ found plaintiff's daily activities inconsistent with the extent of his allegations. Id.
A. Work History
The ALJ found it notable that plaintiff reported trauma symptoms from military experiences in the early 1990s but was able to work for many years despite his symptoms. Tr. 18. An ALJ may reject subjective symptom testimony when the claimant's impairments have remained constant for a number of years and have not prevented the claimant from working throughout that time period. Gregory v. Bowen, 844 F.2d 664, 667 (9th Cir. 1988). However, evidence of deterioration can rebut the presumption that a claimant's long-standing impairments did not preclude past work. Tylitzki v. Shalala, 999 F.2d 1411, 1414 (9th Cir. 1993).
Here, the record reflects that plaintiff's mental impairments began to deteriorate on or around the alleged onset date. In applying for benefits in June 2017, plaintiff indicated that his symptoms “have become worse for the past three years including my ability to finish my work in time.” Tr. 189. In July 2017, examining psychologist Mark Dillon, Psy.D., resolved that plaintiff's recently diagnosed PTSD was, for the first time, causing “[o]occupational and social impairment with deficiencies in most areas.” Tr. 294-98. Further, in October 2018, Mr. Talik stated that plaintiff's PTSD had “substantially increased over the past few months.” Tr. 317. Therefore, substantial evidence does not support the ALJ's decision surrounding plaintiff's work history.
B. History of Treatment
The ALJ cited plaintiff's failure to seek more than “routine and conservative treatment” - i.e., counseling once per month - as being inconsistent with his allegations of disabling mental limitations. Tr. 18. In particular, the ALJ found that if plaintiff's trauma symptoms, sleep problems, and other symptoms were as troubling as alleged, “it seems reasonable to expect him to seek more help with managing his symptoms.” Id.
Contrary to the ALJ's assertion, the record reflects that plaintiff has engaged in regular counseling with Mr. Talik since late 2016, with sessions occurring anywhere from once per week to once per month, depending on his symptom levels. Tr. 46, 308, 317. In other words, it is undisputed that plaintiff has regularly and consistently sought treatment since the alleged onset date for his allegedly disabling symptoms. Therefore, the fact that plaintiff has been unable to procure those treatment records, despite his good faith efforts to do so, is not an appropriate basis to reject his subjective symptom testimony concerning the extent of his mental impairments.
C. Daily Activities
The ALJ found plaintiff's testimony around his activities of daily living “somewhat inconsistent with the extent of his allegations.” Tr. 18. Even where daily activities suggest some difficulty functioning, they may be grounds for discrediting the claimant's testimony to the extent they contradict claims of a totally debilitating impairment. Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012).
Here, the ALJ cited to plaintiff's ability to prepare meals, perform household chores, attend to personal needs, drive, handle money, and socialize as undermining his subjective symptom testimony. Tr. 18. Substantial evidence supports the ALJ's findings as to this issue. In addition to completing tasks within his household, plaintiff was also able to obtain medical care when he wanted to or believed he needed to without issue. See, e.g., Tr. 192-93, 213-15, 295, 308, 317. Additionally, he regularly socialized with his in-laws and frequented restaurants with his wife. Tr. 295. Although there is a dearth of information concerning plaintiff's social activities, the evidence that does exist suggests that the ALJ's RFC for simple, routine work and occasional contact with the public and coworkers was reasonable.
The VE testified the representative occupations identified at step five would be available to a hypothetical individual with plaintiff's age, education, work experience, and RFC, even with the additional limitations of no public contact and “only occasional changes in a routine work setting.” Tr. 50-52. Therefore, even assuming plaintiff's testimony was suggestive of greater social limitations, any error would be harmless. See Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) (mistakes that are “nonprejudicial to the claimant or irrelevant to the ALJ's ultimate disability conclusion” are harmless).
Because the ALJ cited one legally valid reason, supported by substantial evidence, the ALJ's decision is affirmed as to plaintiff's subjective symptom testimony. See Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004) (ALJ's evaluation of the claimant's subjective symptom testimony may be upheld even if all the reasons proffered are not valid).
III. Medical Opinion Evidence
Plaintiff contends the ALJ erred by discrediting the opinions of Dr. Mours and Mr. Talik. Pl.'s Opening Br. 12-13 (doc. 45).
A. Dr. Mours
Where, as here, the plaintiff's application is filed on or after March 27, 2017, the ALJ is no longer tasked with “weighing” medical opinions, but rather must determine which are most “persuasive.” 20 C.F.R. § 404.1520c(a)-(b). “To that end, there is no longer any inherent extra weight given to the opinions of treating physicians . . . the ALJ considers the ‘supportability' and ‘consistency' of the opinions, followed by additional sub-factors, in determining how persuasive the opinions are.” Kevin R. H. v. Saul, 2021 WL 4330860, *4 (D. Or. Sept. 23, 2021). The ALJ must “articulate . . . how persuasive [they] find all of the medical opinions” and “explain how [they] considered the supportability and consistency factors.” Id. At a minimum, “this appears to necessitate that an ALJ specifically account for the legitimate factors of supportability and consistency in addressing the persuasiveness of a medical opinion.” Id.
On September 5, 2017, Dr. Mours completed a one-time examination of plaintiff at the request of the Social Security Administration. His exam consisted of a clinical interview and a mental status exam. Tr. 307-09. Dr. Mours diagnosed plaintiff with PTSD and moderate depression. Tr. 310. In the narrative portion of his report, Dr. Mours stated:
If the claimant were required to work full-time he would have difficulty remembering and following complex verbal and written instructions, working at a standard pace and consistently interacting with others in a socially appropriate manner. If required to work full-time the claimant would have adequate performance understanding, remembering and following simple verbal and written instructions, paying general attention and maintaining sustained attention and concentration for up to 15 minutes. He is also likely to be persistent at his tasks and exhibit general insight and common understanding within a workplace environment. The claimant's presentation and answers during the examination and testing are consistent with his allegations, reported history and the prior records reviewed. The claimant demonstrates the mental and emotional capabilities to understand and manage his own money.Id.
The ALJ found Dr. Mours' opinion “somewhat persuasive.” Tr. 19. In particular, the ALJ found that Dr. Mours did not adequately explain “why the claimant was limited to sustaining attention and concentration for a 15-minute period or would have difficulty working at a standard pace, ” as there was “no objective support” in his report for these restrictions and they were phrased “vague[ly].” Id.
The ALJ “need not accept the opinion of any physician, including a treating physician, if that opinion is brief, conclusory, and inadequately supported by clinical findings.” Chaudry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012). Here, the ALJ's reasons are not entirely supported by substantial evidence.
As an initial matter, Dr. Mours' limitations are unequivocal. Further, contrary to the ALJ's assertion, Dr. Mours' opinion concerning pacing is supported by his report. Specifically, he observed plaintiff to be reserved and have lower energy than expected. Tr. 310. Plaintiff also exhibited a “slower response time on answers than would be expected.” Id. Clinical interviews and mental status evaluations are objective measures that cannot be discounted as a self-report. Kevin R. H, 2021 WL 4330860 at *5.
However, the ALJ is correct that Dr. Mours' opinion regarding plaintiff's attention span is at odds with both his evaluation and the record. Namely, there is no evidence to suggest plaintiff has significantly impaired concentration. Although plaintiff did endorse memory problems, he appeared oriented, attentive to tasks, and persisted during the entire 90-minute exam with Dr. Mours. Tr. 310. In sum, the ALJ erred in rejecting Dr. Mours' pacing limitation.
B. Mr. Talik
Health care providers who are not “acceptable medical sources, ” such as counselors, are still considered “medical sources” under the regulations, and the ALJ can use their opinions in determining the “severity of [the claimant's] impairment(s) and how it affects [the claimant's] ability to work.” 20 C.F.R. § 404.1513(d). An ALJ therefore may not reject the competent testimony of “non-acceptable” or “other” medical sources without comment. Stout, 454 F.3d at 1053. Rather, the ALJ must give “reasons germane to each witness for doing so.” Molina, 674 F.3d at 1111 (quoting Turner v. Comm'r of Soc. Sec., 613 F.3d 1217, 1224 (9th Cir. 2010)).
As addressed herein, Mr. Talik is plaintiff's long-standing mental health counselor through the VA. Tr. 317. On October 15, 2018, Mr. Talik wrote a letter to “provide feedback for [plaintiff's] ongoing military related Post Traumatic Stress Disorder (PTSD) symptoms.” Id. Over “the past 18 months, ” Mr. Talik indicated that plaintiff's PTSD symptoms had substantially increased. Id. In particular, counseling sessions revealed reports of increased anxiety, depression, memory issues, hyper-vigilance, sleep disturbances, exaggerated startle response, isolation, avoidance, interpersonal communication issues, tolerance for dysfunctional relationships, aggression towards other, and irritable behavior. Id. As a result, Mr. Talik explained that he had increased the number of visits and phone contacts with plaintiff to help with stabilization. Id.
In this case, the ALJ rejected Mr. Talik's opinion solely because it was “not supported by any corroborating treatment notes.” Tr. 18.
Given the tone and content of the record, coupled with the procedural history of this case, the ALJ's decision is neither supported by legally sufficient reasons nor substantial evidence. Although the record does not contain any of Mr. Talik's treatment notes from within the adjudication period, as discussed above, it is undisputed that plaintiff sought regular and consistent counseling. It is further undisputed that, over the course of nearly two years, plaintiff's counsel diligently sought plaintiff's treatment records from the VA. It is unclear why those records have not been produced for the period following the alleged onset date despite counsel's best efforts. Nevertheless, in light of these facts, plaintiff should not be punished, or Mr. Talik's opinion wholly ignored, simply because such chart notes were not in the record at the time of the ALJ's decision.
This is especially true considering that, as plaintiff's sole and long-standing treating provider, Mr. Talik's opinion is highly material to the trajectory and extent of plaintiff's mental impairments. See William A. v. Saul, 433 F.Supp.3d 1201, 1210 (D. Or. 2019) (“an ALJ may properly find that an opinion from ‘non-acceptable medical source' outweighs the opinion of the ‘acceptable medical source' . . . particularly [where] a ‘non-acceptable' medical source is the claimant's treating provider”). Moreover, Mr. Talik's opinion is largely consistent with the other medical evidence of record. Thus, the ALJ committed reversible error in assessing the medical opinion evidence.
IV. Remedy
The decision whether to remand for further proceedings or for the immediate payment of benefits lies within the discretion of the court. Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1101-02 (9th Cir. 2014). Nevertheless, a remand for an award of benefits is generally appropriate when: (1) the ALJ failed to provide legally sufficient reasons for rejecting evidence; (2) the record has been fully developed, there are no outstanding issues that must be resolved, and further administrative proceedings would not be useful; and (3) after crediting the relevant evidence, “the record, taken as a whole, leaves not the slightest uncertainty” concerning disability. Id. at 1100-01; see also Dominguez v. Colvin, 808 F.3d 403, 407-08 (9th Cir. 2015) (summarizing the standard for determining the proper remedy).
As discussed above, the ALJ committed harmful legal error by rejecting Mr. Talik's opinion and Dr. Mours' pacing limitation. The record is nonetheless ambiguous regarding the extent of plaintiff's allegedly disabling mental impairments. On one hand, it is undisputed that plaintiff sought regular and consistent counseling with Mr. Talik since 2016, and has service-related psychological symptoms. Tr. 46, 308, 317. On the other hand, Mr. Talik does not endorse any concrete work-related limitations in his letter. Tr. 317. Additionally, while the evidence demonstrates that plaintiff's symptoms worsened, it is unclear when and if those symptoms became disabling. The ALJ's lack of any treatment records compounds the record's incertitude.
As such, further proceedings are required to resolve this case. See Treichler, 775 F.3d at 1099 (except in “rare circumstances, ” the proper remedy upon a finding of harmful error is to remand for further administrative proceedings). Given the complex and long-standing nature of plaintiff's mental impairments, coupled with the remote alleged onset date, an in-depth psychological or neurodiagnostic assessment would be helpful. Additional efforts should also be made to obtain plaintiff's VA mental health counseling and treatment records from within the adjudication period. Therefore, upon remand, the ALJ must seek out additional records and a consultative exam and, if necessary, reweigh the medical and other evidence of record, reformulate plaintiff's RFC, and obtain additional VE testimony.
RECOMMENDATION
For the foregoing reasons, the Commissioner's decision should be reversed, and this case should be remanded for further proceedings.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.