Turner v. Commissioner Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PORTLAND DIVISION

KIMBERLY T.,1 Case No. 3:19-cv-01013-HZ

Plaintiff, OPINION & ORDER

v.

COMMISSIONER, SOCIAL

SECURITY ADMINISTRATION,

Defendant.

Robyn M. Rebers

Robyn M. Rebers, LLC

P.O. Box 3530

Wilsonville, OR 97070

Attorney for Plaintiff

Renata Gowie

Assistant United States Attorney

District of Oregon

1000 SW Third Avenue, Suite 600

Portland, OR 97204

1 In the interest of privacy, this Opinion uses only the first name and the initial of the last name

of the non-governmental party or parties in this case. Where applicable, this Opinion uses the

same designation for a non-governmental party’s immediate family member.

Lars J. Nelson

Social Security Administration

Office of the General Counsel

701 Fifth Avenue, Suite 2900 M/S 221A

Seattle, WA 98104

Attorneys for Defendant

HERNÁNDEZ, District Judge:

Plaintiff Kimberly T. (“Plaintiff”) brings this action seeking judicial review of the

Commissioner’s final decision to deny disability insurance benefits (“DIB”). This Court has

jurisdiction pursuant to 42 U.S.C. § 405(g). The Court reverses the Commissioner’s decision and

remands this case for further administrative proceedings.

PROCEDURAL BACKGROUND

Plaintiff applied for DIB on June 10, 2015, alleging an onset date of November 21, 2014.

Tr. 16.2 Plaintiff’s date last insured (“DLI”) is December 31, 2019. Tr. 18. Plaintiff’s application

was denied initially and on reconsideration. Tr. 16.

On July 18, 2018, Plaintiff appeared with counsel for a hearing before an Administrative

Law Judge (“ALJ”). Id. On August 2, 2018, the ALJ found Plaintiff not disabled. Tr. 27. The

Appeals Council denied review. Tr. 1.

FACTUAL BACKGROUND

Plaintiff alleges disability based on major depressive disorder, generalized anxiety

disorder with panic attacks, post-traumatic stress disorder (“PTSD”), panic disorder, and status

post stroke. Tr. 197. At the time of her alleged onset date, she was 50 years old. Tr. 26. She has a

bachelor’s degree and past relevant work experience as a substance abuse counselor. Tr. 26, 193.

2 Citations to “Tr.” refer to the page(s) indicated in the official transcript of the administrative

record, filed herein as Docket No. 10.

SEQUENTIAL DISABILITY EVALUATION

A claimant is disabled if they are unable to “engage in any substantial gainful activity by

reason of any medically determinable physical or mental impairment which . . . has lasted or can

be expected to last for a continuous period of not less than 12 months[.]” 42 U.S.C.

§ 423(d)(1)(A). Disability claims are evaluated according to a five-step procedure. See Valentine

v. Comm’r, 574 F.3d 685, 689 (9th Cir. 2009) (in social security cases, agency uses five-step

procedure to determine disability). The claimant bears the ultimate burden of proving disability.

Id.

In the first step, the Commissioner determines whether a claimant is engaged in

“substantial gainful activity.” If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S. 137,

140 (1987); 20 C.F.R. § 404.1520(b). In step two, the Commissioner determines whether the

claimant has a “medically severe impairment or combination of impairments.” Yuckert, 482 U.S.

at 140-41; 20 C.F.R. § 404.1520(c). If not, the claimant is not disabled. Yuckert, 482 U.S. at 141.

In step three, the Commissioner determines whether the claimant’s impairments, singly

or in combination, meet or equal “one of a number of listed impairments that the [Commissioner]

acknowledges are so severe as to preclude substantial gainful activity.” Id.; 20 C.F.R.

§ 404.1520(d). If so, the claimant is conclusively presumed disabled; if not, the Commissioner

proceeds to step four. Yuckert, 482 U.S. at 141.

In step four, the Commissioner determines whether the claimant, despite any

impairment(s), has the residual functional capacity (“RFC”) to perform their “past relevant

work.” 20 C.F.R. § 404.1520(e). If the claimant can perform past relevant work, the claimant is

not disabled. If the claimant cannot perform past relevant work, the burden shifts to the

Commissioner. In step five, the Commissioner must establish the claimant can perform other

work. Yuckert, 482 U.S. at 141-42; 20 C.F.R. § 404.1520(e)-(f). If the Commissioner meets their

burden and proves the claimant can perform other work that exists in the national economy, then

the claimant is not disabled. 20 C.F.R. § 404.1566.

THE ALJ’S DECISION

At step one, the ALJ determined Plaintiff had not engaged in substantial gainful activity

since her alleged onset date. Tr. 18. Next, at steps two and three, the ALJ determined Plaintiff

has the following severe impairments: “A depressive disorder, an anxiety disorder with panic

attacks and post-traumatic stress disorder.” Id. However, the ALJ determined Plaintiff’s

impairments did not meet or medically equal the severity of a listed impairment. Tr. 19.

At step four, the ALJ concluded Plaintiff has the residual functional capacity to perform a

full range of work at all exertional levels as defined in 20 C.F.R. § 404.1567 with the following

limitations:

She is limited to carrying out and maintaining concentration, persistence and pace

for simple tasks. She is incapable of maintaining concentration, persistence and

pace for more complex tasks. She is capable of appropriate supervisor contact. She

is limited to superficial contact with coworkers and the public. She should not be

required to engage in teamwork.

Tr. 21.

Because of these limitations, the ALJ concluded Plaintiff could not perform her past

relevant work. Tr. 26. But at step five, the ALJ found there are jobs that exist in significant

numbers in the national economy that Plaintiff can perform, such as floor waxer, wall cleaner,

and window cleaner. Tr. 27. Thus, the ALJ concluded Plaintiff is not disabled. Id.

STANDARD OF REVIEW

A court may set aside the Commissioner’s denial of benefits only when the

Commissioner’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) (internal

quotation marks omitted). “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.” Id. (internal quotation marks omitted). The court considers the record as a

whole, including both the evidence that supports and detracts from the Commissioner’s decision.

Id.; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). “Where the evidence is

susceptible to more than one rational interpretation, the ALJ’s decision must be affirmed.”

Vasquez, 572 F.3d at 591 (internal quotation marks and brackets omitted); see also Massachi v.

Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (“Where the evidence as a whole can support either

a grant or a denial, [the court] may not substitute [its] judgment for the ALJ’s”) (internal

quotation marks omitted).

DISCUSSION

Plaintiff argues the Commissioner erred by: (1) rejecting her subjective symptom

testimony; and (2) discounting the medical opinion evidence.

I. Subjective Symptom Testimony

The ALJ is responsible for evaluating symptom testimony. SSR 16-3p, 2017 WL

5180304, at *1 (Oct. 25, 2017). Once a claimant shows an underlying impairment and a causal

relationship between the impairment and some level of symptoms, clear and convincing reasons

are needed to reject a claimant’s testimony if there is no evidence of malingering. Carmickle v.

Comm’r, 533 F.3d 1155, 1160 (9th Cir. 2008) (absent affirmative evidence the plaintiff is

malingering, “where the record includes objective medical evidence establishing that the

claimant suffers from an impairment that could reasonably produce the symptoms of which he

complains, an adverse credibility finding must be based on clear and convincing reasons”)

(quotation marks and citation omitted); see also Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir.

2012) (the ALJ engages in a two-step analysis for subjective symptom evaluation: First, the ALJ

determines whether there is “objective medical evidence of an underlying impairment which

could reasonably be expected to produce the pain or other symptoms alleged”; and second, “if

the claimant has presented such evidence, and there is no evidence of malingering, then the ALJ

must give specific, clear and convincing reasons in order to reject the claimant’s testimony about

the severity of the symptoms.”) (quotation marks and citations omitted).

When evaluating subjective symptom testimony, “[g]eneral findings are insufficient.”

Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (quoting Lester v. Chater, 81 F.3d 821, 834

(9th Cir. 1995)). “An ALJ does not provide specific, clear, and convincing reasons for rejecting a

claimant’s testimony by simply reciting the medical evidence in support of his or her residual

functional capacity determination.” Brown-Hunter v. Colvin, 806 F.3d 487, 489 (9th Cir. 2015).

Instead, “the ALJ must specifically identify the testimony she or he finds not to be credible and

must explain what evidence undermines the testimony.” Holohan v. Massanari, 246 F.3d 1195

(9th Cir. 2001); see also Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (The reasons

proffered must be “sufficiently specific to permit the reviewing court to conclude that the ALJ

did not arbitrarily discount the claimant’s testimony.”). Factors the ALJ may consider when

making such credibility determinations include the objective medical evidence, the claimant’s

treatment history, the claimant’s daily activities, and inconsistencies in testimony. Ghanim v.

Colvin, 763 F.3d 1154, 1163 (9th Cir. 2013); Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d

1090, 1102 (9th Cir. 2014).

Here, the ALJ summarized Plaintiff’s testimony as follows:

The claimant has alleged that her ability to work is limited by a major depressive

disorder, a generalized anxiety disorder with panic attacks, PTSD, a panic disorder,

and a history of stroke. She testified at the hearing that she has no physical issues.

She stated she was unable to function at her most recent job as an evaluation

counselor. She was unable to present her cases at staff meetings. She was having

severe memory problems and she would be unable to remember her clients. She

stated she was hypervigilant, hypersensitive, and paranoid. She stated she has

experienced anxiety and panic symptoms since age 16 and she has never been the

same since her stroke. She experiences panic attacks, which are triggered by dealing

with “mean” and rude people. Her panic attacks occur four to six times a week

lasting from five minutes to one hour. When panic attacks occur, she will lie down.

If the panic attack is severe, she will take medication. She stated she had panic

attacks for three days in anticipation of her disability hearing. The claimant testified

that she is unable to deal with people, including a supervisor. However, she was

unable to describe what kinds of problems she would have with supervisors.

Tr. 21-22 (record citation omitted).

The ALJ found Plaintiff’s medically determinable impairments could reasonably be

expected to cause the alleged symptoms and did not identify evidence of malingering. Tr. 22.

However, the ALJ concluded that Plaintiff’s statements concerning the intensity, persistence and

limiting effects of her symptoms were not entirely consistent with the medical evidence and

other evidence in the record. Id. Specifically, the ALJ found Plaintiff’s symptom allegations

were inconsistent with her daily activities and unsupported by the objective medical evidence

and treatment records.

A. Daily Activities

Contradiction with a claimant’s activities of daily living is a clear and convincing reason

for rejecting a claimant’s testimony. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008).

There are two grounds for using daily activities to reject a claimant’s symptom testimony: (1) the

activities meet the threshold for transferable work skills, or (2) the activities contradict the

claimant’s other testimony. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). However,

“disability claimants should not be penalized for attempting to lead normal lives in the face of

their limitations,” Reddick, 157 F.3d at 722, and “the mere fact that a plaintiff has carried on with

certain daily activities, such as grocery shopping . . . does not in any way detract from h[er]

credibility,” Webb v. Barnhart, 433 F.3d 683, 688 (9th Cir. 2005) (citing Vertigan v. Halter, 260

F.3d 1044, 1050 (9th Cir. 2001)).

Here, the ALJ found Plaintiff’s daily activities were “inconsistent with her allegations of

debilitating mental health symptoms.” Tr. 23. The ALJ cited Plaintiff’s ability to care for her

grandchild part time, care for her pets with help from her spouse, perform self-care activities and

household chores, prepare meals, shop for groceries, socialize with family, pay bills, drive a car,

go to the beach and concerts, and attend weekly church service and biannual spiritual retreats. Tr.

23.

The ALJ did not find, however, that Plaintiff’s reported activities indicated transferrable

work skills. The ALJ also failed to specify how Plaintiff’s reported activities contradict her

symptom testimony. Although a reviewing court may connect the dots if an ALJ’s reasoning can

“reasonably be discerned,” Molina, 674 F.3d at 1121, here there are no dots to connect.3 Merely

listing Plaintiff’s activities—the bulk of which the Ninth Circuit has held are so minimal that

they do not undermine a claim of disability—and declaring they are inconsistent with the entirety

of Plaintiff’s “mental health symptoms” is neither clear nor convincing reasoning. Holohan, 246

F.3d at 1208 (“[T]he ALJ must specifically identify the testimony she or he finds not to be

credible and must explain what evidence undermines the testimony.”). Accordingly, the ALJ

erred.

3 The Commissioner’s explanation for why Plaintiff’s activities are inconsistent with her specific

symptom allegations, while plausible, are impermissible post-hoc rationalizations that cannot

form the basis for affirming the ALJ. Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1225

(9th Cir. 2009) (a district court may not affirm an ALJ’s decision based on “post hoc

rationalizations that attempt to intuit what the adjudicator may have been thinking”) (citation

omitted).

B. Objective Medical Evidence and Treatment History

The ALJ is instructed to consider objective evidence in considering a claimant’s

symptom allegations. 20 C.F.R. § 416.929(c)(2) (“Objective medical evidence . . . is a useful

indicator to assist us in making reasonable conclusions about the intensity and persistence of

your symptoms[.]”). Inconsistency between a claimant’s testimony and the objective medical

record is a valid reason to discount that testimony. See Connett v. Barnhart, 340 F.3d 871, 874

(9th Cir. 2003) (affirming the ALJ's credibility finding when the plaintiff’s testimony of weight

fluctuation was inconsistent with the medical record). And in some cases, the ALJ can discount

claimant testimony when that testimony is not supported by the objective medical record. See

Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1196 (9th Cir. 2007) (“‘Graphic and

expansive’ pain symptoms could not be explained on objective, physical basis by claimant’s

treating physician.”); Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (ALJ could consider

mild findings on MRIs and X-rays in discounting the plaintiff’s testimony as to her back pain).

But this may not be the ALJ’s sole reason for discounting a claimant’s testimony: “the

Commissioner may not discredit the claimant’s testimony as to the severity of symptoms merely

because they are unsupported by objective medical evidence.” Reddick, 157 F.3d at 722.

The ALJ concluded that Plaintiff’s “allegations of disabling impairments are not fully

supported by the treatment records and the objective evidence” because her “[m]ental status

exams have been essentially normal other than symptoms of depression and anxiety at times.” Tr.

22 (emphasis added). Given that Plaintiff claims she is disabled due to her depression and

anxiety, the ALJ’s finding is not a convincing reason to reject her testimony. Plaintiff having a

“normal” mood and affect and being “alert and oriented to person, place, and time” do not

conflict with Plaintiff’s allegations of social anxiety and panic. Tr. 341, 606, 609; Ghanim, 763

F.3d at 1164 (noting that “observations of cognitive functioning during therapy sessions [did] not

contradict [the plaintiff’s] reported symptoms of depression and social anxiety”). Accordingly,

the ALJ erred in relying on Plaintiff’s mental status examinations to reject her testimony.

The ALJ also erred by rejecting Plaintiff’s symptom testimony on the basis that she

“reported obtaining good relief from PTSD symptoms with prescribed Prazosin” and her mental

health counselor indicated her prescribed medications “had resulted in improvement in her

functioning.” Tr. 22. “Reports 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 . . . [and] 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

the workplace.” Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014). Although Plaintiff

reported that Prazosin was helpful, the record demonstrates that the medication did not

completely alleviate her symptoms. See, e.g., Tr. 764 (Plaintiff reporting in April 2018 that she

“continues to have PTSD problems . . . unable to sleep, up all the time . . . hypersensitivity.

Scares easily”). More problematic is the ALJ’s mischaracterization of Nurse Practitioner

Henschel’s opinion, discussed infra, to find Plaintiff’s prescribed medications “resulted in

improvement in her functioning.” Tr. 22 (citing Tr. 805). While the nurse practitioner detailed

that Plaintiff’s treatment resulted in “some improvement in functioning,” he further noted that

she still experienced issues with “explosive anger, high anxiety, difficulty concentrating and . . .

hyperreactivity in public settings.” Tr. 805. Accordingly, the ALJ’s finding is not supported by

substantial evidence.

Finally, the ALJ seemingly rejected Plaintiff’s testimony because she “has acknowledged

that her symptoms of depression and PTSD are exacerbated by situational stressors such as

family relationship issues, a custody battle over her granddaughter, loss of her father, and

deployment of her son to Iraq.” Tr. 22. An ALJ may reject a claimant’s mental health symptoms

that are situational and “unlikely to persist once . . . circumstances improve[.]” Chesler v. Colvin,

649 F. App’x 631, 632 (9th Cir. 2016). The record reflects, however, that Plaintiff’s depression

and PTSD are longstanding impairments. This is not a case in which Plaintiff’s “situations,” as

opposed to her psychological impairments, are the cause of her limitations. Moreover, “one weak

reason is insufficient to meet the ‘specific, clear and convincing’ standard on this record.” See

Burrell v. Colvin, 775 F.3d 1133, 1140 (9th Cir. 2014) (citations omitted). The Court therefore

concludes that the ALJ’s rejection of Plaintiff’s symptom testimony was erroneous.

II. Medical Opinion Evidence

Plaintiff argues the ALJ failed to provide legally sufficient reasons for discounting the

opinions of Jacob Helton, Psy.D. (“Dr. Helton”), Donald Henschel, RN, PMHNP (“NP

Henschel”), and Martin Peters, D.O. (“Dr. Peters”).

The ALJ is responsible for resolving conflicts in the medical record, including conflicts

among physicians’ opinions. Carmickle, 533 F.3d at 1164. In general, the opinion of a treating

physician is given more weight than the opinion of an examining physician, and the opinion of

an examining physician is afforded more weight than the opinion of a nonexamining physician.

Ghanim, 763 F.3d at 1160; Orn, 495 F.3d at 632; 20 C.F.R. § 416.927. “If a treating physician’s

opinion is well-supported by medically acceptable clinical and laboratory diagnostic techniques

and is not inconsistent with the other substantial evidence in [the] case record, [it will be given]

controlling weight.” Orn, 495 F.3d at 631 (internal quotations omitted) (alterations in original);

Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (same); 20 C.F.R. § 416.927(c). “When a

treating physician’s opinion is not controlling, it is weighted according to factors such as the

length of the treatment relationship and the frequency of examination, the nature and extent of

the treatment relationship, supportability, consistency with the record, and specialization of the

physician.” Trevizo, 871 F.3d at 675; 20 C.F.R. § 416.927(c)(2)-(6).

To reject the uncontroverted opinion of a treating or examining physician, the ALJ must

present clear and convincing reasons. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005).

If a treating or examining doctor’s opinion is contradicted by another doctor’s opinion, it may be

rejected by specific and legitimate reasons. Ford v. Saul, 950 F.3d 1141, 1154–55 (9th Cir.

2020). To meet this burden, the ALJ must set out a “detailed and thorough summary of the facts

and conflicting clinical evidence, stating his interpretation thereof, and making findings.”

Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). When evaluating conflicting opinions,

an ALJ is not required to accept an opinion that is not supported by clinical findings, or is brief

or conclusory. Bray, 554 F.3d at 1228.

Under the applicable regulations, a nurse practitioner is not an acceptable medical source.

20 C.F.R. § 404.1513(a). Instead, this type of practitioner is an “other” medical source whose

opinion is relevant to determining the severity of the claimant’s impairments and how they affect

the claimant's ability to function. 20 C.F.R. § 404.1514(d). An ALJ may not reject the competent

testimony of other medical sources without comment. Stout v. Comm’r, 454 F.3d 1050, 1053

(9th Cir. 2006). To reject the competent testimony of other medical sources, the ALJ need only

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)).

A. Dr. Helton

Dr. Helton issued a medical opinion in August 2016. Tr. 449-52. He detailed that he

began treating Plaintiff in December 2015, and that she had attended 25 individual therapy

sessions with him. Tr. 449. Dr. Helton noted that Plaintiff’s diagnoses included chronic PTSD

and recurrent, moderate major depressive disorder. Id. He opined that Plaintiff was “significantly

limited in all the listed aspects of work-related mental activities, including no useful ability to

complete a normal workday and workweek, maintain regular attendance, sustain an ordinary

routine, perform at a consistent pace, respond appropriately to change in a routine work setting,

and deal with normal work stress.” Tr. 24 (citing Tr. 451). Dr. Helton further opined that

Plaintiff would likely be absent from work more than two days per month. Tr. 452.

The ALJ provided two reasons for giving “limited weight” to Dr. Helton’s medical

opinion. Tr. 24. Neither was specific or legitimate. First, the ALJ discounted Dr. Helton’s

opinion because “his treatment records primarily discuss [Plaintiff]’s issues with attempting to

gain legal custody of her grandchild, including anger with family members and the legal

system.” Id. The ALJ did not explain why Plaintiff’s treatment undermines Dr. Helton’s opinion.

“While the treatment notes documented situational stressors, the notes do not show [P]laintiff has

no mental problems, and is simply stressed by her situation.” Tina S. v. Comm’r of Soc. Sec., No.

C19-547 BAT, 2019 WL 6168027, at *2 (W.D. Wash. Nov. 20, 2019). Instead, Dr. Helton’s

notes demonstrate that Plaintiff “has preexisting mental health problems such as depression,

anxiety and PTSD; that stressors do not make these conditions better; and that [P]laintiff

struggles with these mental conditions whether there are stressors in her life of not.” Id.

Second, the ALJ found Dr. Helton’s opinion was “inconsistent with treatment records

from early 2016 indicating that [Plaintiff] was discuss[ing] relocating to California and plans to

apply for jobs.” Tr. 24 (citing Tr. 560, 573). The ALJ, however, failed to explain how Plaintiff

“potentially relocating to CA” and Dr. Helton discussing “the pros and cons of relocating” and

“finding new employment” with Plaintiff, undercut Dr. Helton’s opined limitations. Although a

claimant’s work activities can undermine her claim of disability, Bray, 554 F.3d at 1227, there is

no evidence that Plaintiff actually sought out new employment. Accordingly, Plaintiff discussing

the idea of relocating to California and thinking about applying for a job were not specific and

legitimate reasons for rejecting Dr. Helton’s opinion.

B. NP Henschel and Dr. Peters

In June 2018, NP Henschel provided an opinion in which he indicated that Plaintiff

suffered with emotional regulation problems, explosive anger, high anxiety, difficulty

concentrating, and hyperreactivity in public settings. Tr. 805. He assessed Plaintiff was seriously

limited or unable to meet competitive standards in numerous areas of functioning, including the

ability to maintain regular attendance and be punctual, complete a normal workday and

workweek without psychological interruptions, respond appropriately to instructions and

criticism from a supervisor, interact appropriately with coworkers and the general public, and

tolerating normal work stress and changes in routine. Tr. 807. NP Henschel opined that Plaintiff

would not be able to adequately function in the workplace due to her angry outbursts and

difficulty handling stress, hearing criticism, or following instructions. Id. In July 2018, Dr. Peters

signed a form stating that he concurred with NP Henschel’s opinion. Tr. 813.

The ALJ gave NP Henschel’s opinion “limited weight” because he had treated Plaintiff

for eight months and seen her every one to two months; his report was based on Plaintiff’s

subjective complaints; he reported that he had completed the form in cooperation with Plaintiff;

he acknowledged that he had not assessed Plaintiff’s workplace performance; and his opinion

was inconsistent with his treatment records. Tr. 24-25. In addition, the ALJ afforded Dr. Peters’

opinion “little weight” because he did not provide supporting rationale for his opinion and his

treatment records demonstrated essentially normal mental status exams. Tr. 25.

After the hearing, NP Henschel provided a letter which clarified that only question

number eight of his opinion was completed “in cooperation” with Plaintiff and that his

assessment was consistent with his clinical observations of Plaintiff as well as her reports of

functioning in other settings. Tr. 10. Dr. Peters also provided a post-hearing narrative addressing

the ALJ’s reasoning. Tr. 11. He noted that he reviews Plaintiff’s mental health records as they

are sent to him and manages her medication for compliance and side effects. Id. Dr Peters

explained that the neurological exams cited by the ALJ should not be confused with mental

status exams because they are designed to assess for focal neurological deficits that might show a

repeat stroke or aneurysm condition. Id.

Plaintiff argues the ALJ failed to give legally sufficient reasons for rejecting NP

Henschel’s and Dr. Peters’ opinions. Plaintiff further argues that the medical providers’ post-

hearing submissions contradict the reasons the ALJ gave for rejecting their opinions, such that

the ALJ’s decision is no longer supported by substantial evidence. Because this case is being

remanded for further proceedings, infra, the Court declines to resolve Plaintiff’s assertions of

error relating to NP Henschel and Dr. Peters. On remand, the ALJ must reevaluate the opinions

in light of the post-hearing clarifications.

The Court notes, however, that the ALJ’s rejection of NP Henschel’s opinion on the basis

that he had a purportedly limited treating relationship with Plaintiff seems inconsistent with the

ALJ’s decision to give “significant weight” to the opinions of Drs. Ju and Boyd, who have never

seen Plaintiff, much less treated her. In addition, rejecting NP Henschel’s opinion because he

partially relied on Plaintiff’s subjective reporting is also problematic for several reasons. First,

the ALJ failed to give legally sufficient reasons for rejecting Plaintiff’s subjective symptom

testimony. Thus, there is no justification for the ALJ to find NP Henschel improperly relied on

Plaintiff’s subjective reporting. Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 602 (9th

Cir. 1999). Second, an ALJ should not reject an opinion as overly reliant on a claimant’s

complaints where the medical source “does not discredit those complaints and supports his

ultimate opinion with his own observations.” Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1200

(9th Cir. 2008). Finally, a psychological opinion “should not be rejected simply because of the

relative imprecision of the psychiatric methodology.” Buck v. Berryhill, 869 F.3d 1040, 1049

(9th Cir. 2017) (“Psychiatric evaluations may appear subjective . . . . [b]ut such is the nature of

psychiatry.”) (citations omitted).4

III. Remand

The decision whether to remand for further proceedings or for immediate payment of

benefits is within the Court’s discretion. Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000).

To determine which type of remand is appropriate, the Ninth Circuit uses a three-part test.

Garrison, 759 F.3d at 1020; Treichler, 775 F.3d at 1100. First, the ALJ must fail to provide

legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion.

Garrison, 759 F.3d at 1020. Second, the record must be fully developed, and further

administrative proceedings would serve no useful purpose. Id. Third, if the Court remands the

case and credits the improperly discredited evidence as true, the ALJ would be required to find

the claimant disabled. Id. To remand for an award of benefits, each part must be satisfied. Id. The

“ordinary remand rule” is “the proper course,” except in rare circumstances. Treichler, 775 F.3d

at 1101.

4 The Court further notes that “[t]o the extent nurse practitioner [Henschel] was working closely

with, and under the supervision of, Dr.[Peters], h[is] opinion is to be considered that of an

‘acceptable medical source.’” Taylor v. Comm’r of Soc. Sec. Admin., 659 F.3d 1228, 1234 (9th

Cir. 2011) (quoting Gomez v. Chater, 74 F.3d 967, 971 (9th Cir. 1996).

Plaintiff asks the Court to credit her testimony and medical opinion evidence as true and

remand this case for immediate payment of benefits. This case, however, is not one with “rare

circumstances” justifying that type of remand. Further administrative proceedings are necessary

to reevaluate NP Henschel’s and Dr. Peters’ opinion in light of their post-hearing clarifications.

The Court therefore finds the ordinary remand rule is the proper course in this case.

CONCLUSION

Based on the foregoing, the Commissioner’s decision is REVERSED and REMANDED

for administrative proceedings.

IT IS SO ORDERED.

DATED:____J_u_n_e__ 2_2_,_ 2__0_2_1_______.

__________________________________

MARCO A. HERNÁNDEZ

United States District Judge