Deaton v. Commissioner Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

KATHERINE D.,1 No. 6:20-cv-1920-MO

Plaintiff, OPINION & ORDER

v.

COMMISSIONER, SOCIAL

SECURITY ADMINISTRATION,

Defendant.

MOSMAN, District Judge:

This matter comes before me on Plaintiff Katherine D.’s Complaint [ECF 1] against

Defendant Commissioner of the Social Security Administration. For the reasons given below, I

REVERSE the Commissioner’s decision and REMAND this case for further proceedings.

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

the nongovernmental party in this case.

PROCEDURAL BACKGROUND

On January 4, 2018, Plaintiff applied for Supplemental Security Income (“SSI”) under

Title XVI of the Social Security Act, alleging disability beginning May 8, 2017. Tr. 163-68. The

Social Security Administration (“SSA”) denied her claim initially and upon reconsideration. Tr.

97-109. Plaintiff appeared and testified at a hearing held on November 18, 2019, before

Administrative Law Judge (ALJ) B. Hobbs. Tr. 31-63. On January 17, 2020, the ALJ issued a

decision finding that Plaintiff had not been under a disability at any time from the alleged onset

date through the date of the decision. Tr. 10-30. Plaintiff filed an appeal, and the Appeals

Council denied review. Tr. 1-6.

THE ALJ’S FINDINGS

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

since January 4, 2018, the application date. Tr. 15. At step two, the ALJ determined that Plaintiff

had the following severe impairments: obesity, diabetes mellitus, chronic kidney disease, post-

traumatic stress disorder (“PTSD”), unspecified bipolar disorder, attention deficit hyperactivity

disorder (“ADHD”), somatic symptom disorder, personality disorder, and right shoulder pain. Tr.

15. At step three, the ALJ found no impairment that met or equaled the severity of any

impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 16. The ALJ assessed

Plaintiff’s residual functional capacity (“RFC”) to:

perform medium work as defined in 20 CFR 416.967(c) except the claimant can

never climb ladders, ropes, or scaffolds. She can frequently reach overhead with

her right upper extremity and she can tolerate no more than occasional exposure

to concentrated airborne irritants. The claimant can apply commonsense

understanding to carry out short and simple written or oral instructions, consistent

with level 2 reasoning that can be learned in 30 days or less. The claimant can

have occasional interactive contact with the public and she can have frequent

interactive contact with co-workers or supervisors.

Tr. 20.

At step four, the ALJ determined that Plaintiff was unable to perform any past relevant

work. Tr. 24. At step five, the ALJ determined that there are jobs that exist in significant

numbers in the national economy that the claimant can perform such as vehicle cleaner, hand

packager, and salvage laborer. Tr. 24-25. The ALJ therefore found Plaintiff not disabled. Tr. 25.

LEGAL STANDARD

Courts must uphold the ALJ’s decision if it “was supported by substantial evidence and

based on proper legal standards.” Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). Substantial

evidence is “more than a mere scintilla,” and means only “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148,

1150 (2019) (internal quotation marks omitted). When “evidence is susceptible of more than one

rational interpretation ... the ALJ’s conclusion ... must be upheld.” Burch v. Barnhart, 400 F.3d

676, 679 (9th Cir. 2005). Errors in the ALJ’s decision do not warrant reversal if they are

harmless. Stout v. Comm’r Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006).

DISCUSSION

Plaintiff raises two issues with the ALJ’s decision. Plaintiff argues the ALJ erred by (1)

erroneously discounting her symptom testimony, and (2) improperly rejecting the medical

opinions of Kris Hallenburg, Ph.D., and Robert Basham, Ph.D. I address these issues in turn.

I. Subjective Symptom Testimony

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

5180304, at *1 (Oct. 25, 2017). The ALJ engages in a two-step analysis for subjective symptom

evaluation. Molina v. Astrue, 674 F.3d 114, 1112 (9th Cir. 2012) (superseded on other grounds).

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.”

Id. (internal quotations omitted). 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.” Id.

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

Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). “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.”).

At the hearing, Plaintiff testified that she experiences right shoulder pain and is limited to

lifting only ten pounds. Tr. 42. She experiences pain with overhead reaching. Tr. 42. She

experiences daily kidney pain, which is aggravated by kneeling, sitting, or walking too much. Tr.

44, 51. She can walk three blocks before experiencing pain. Tr. 44. She can sit for forty-five

minutes before needing to walk around to alleviate the pain. Tr. 44. She lies down three or four

times a day for twenty-five to thirty minutes at a time for pain relief. Tr. 44-45. She sleeps about

four hours each night and experiences fatigue throughout the day, which causes focus and

concentration issues. Tr. 45. She is able to focus for only five to ten minutes at a time. Tr. 46. It

then takes an hour or two before she can return to the task she was doing. Tr. 46. She relies on

reminders from her mother to stay focused. Tr. 46. At the time of the hearing, she was living in

her truck. Tr. 46, 54. She sometimes has difficulty getting along with others depending on the

“vibe” she gets from them. Tr. 47. She feels restless at times and has difficulty staying in one

spot due to ADHD. Tr. 47-48. She experiences anxiety in public places. Tr. 48. She grocery

shops at night to avoid other people. Tr. 48. She showers once every two weeks. Tr. 50. She does

not believe she can work because of her anxiety around people and her difficulty concentrating.

Tr. 50. She lost custody to all eight of her children. Tr. 52. She was not engaging in mental

health treatment because her insurance would not cover it. Tr. 56-57.

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. 21.

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. Tr. 21. Specifically, the ALJ found Plaintiff’s symptom allegations

were inconsistent with the objective medical evidence and her record of conservative treatment,

and that Plaintiff’s daily activities conflicted with her symptom allegations. Tr. 21.

A. Objective Medical Evidence

The ALJ is instructed to evaluate 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[.]”). Indeed, “[w]hen objective medical evidence in the record is inconsistent with the

claimant's subjective testimony, the ALJ may indeed weigh it as undercutting such testimony.”

Smartt v. Kijakazi, 53 F.4th 489, 498 (9th Cir. 2022) (emphasis in original); see also 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). The absence

of corroborating objective medical evidence is not enough, on its own, however, to reject a

claimant’s symptom testimony. 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2); SSR 16-3p, 2017

WL 5180304, at *5; Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006).

The ALJ failed to identify conflicting medical records to discount Plaintiff’s subjective

symptom testimony about the extent of her physical pain. Conflict with objective medical

evidence can be a sufficient basis for discounting a claimant’s testimony. Smartt, 53 F.4th at 498;

20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2). At the hearing, Plaintiff described shoulder pain and

back pain associated with her kidney disease that limited her ability to lift, “sit[] too much, or

walk[] too far.” Tr. 41-43. She elaborated that she can only walk a few blocks and sit for about

45 minutes without experiencing kidney pain. Tr. 44. The ALJ cited several medical records

from before the relevant period that showed Plaintiff had normal range of motion, “no strength or

sensation deficits,” and “no weakness but some tenderness.” Tr. 21 (citing appointments from

December 2016 & May 2017). By contrast, the evidence the ALJ identified during Plaintiff’s

alleged disability showed “acute shoulder pain,” “limited range of motion,” and identified

Plaintiff’s polycystic kidney disease. Tr. 21. Nothing the ALJ cited from this period in any way

undermined Plaintiff’s allegations of pain and physical symptoms; if anything, the evidence of

acute pain and limited mobility supports Plaintiff’s allegations. Tr. 21. The ALJ cited

improvements in Plaintiff’s hemoglobin levels, but does not connect this fact to Plaintiff’s pain

allegations, or any of her testimony about physical limitations. Tr. 21. Because the ALJ did not

identify any evidence that directly conflicted with Plaintiff’s testimony about her physical pain,

this was not a clear and convincing reason to discount her testimony on the issue.

The ALJ did identify some objective medical evidence that could undermine Plaintiff’s

testimony about her mental health symptoms, but failed to do so in a clear and convincing way

because he did not consider Plaintiff’s somatic symptom disorder. Plaintiff testified that her

mental health problems make it difficult for her to concentrate and to interact well with others.

Tr. 46-56. The ALJ contrasted this testimony with otherwise normal or positive results from

throughout Plaintiff’s mental health care during the relevant period. Tr. 21-22. For example, the

ALJ noted that at a January 2018 visit Plaintiff had “appropriate mood, appropriate affect, she

was calm, and had normal speech. Her thought process was intact, she had no delusions, she had

good judgment and insight.” Tr. 21 (citing Tr. 325-460). Likewise, in April 2018, the ALJ noted

Plaintiff was not anxious and she had an appropriate affect, mood, and behavior. She had no

compulsive behaviors and a sufficient fund of knowledge. Tr. 21 (citing Tr. 286-324). Finally,

the ALJ cited a December 2019 visit where Plaintiff demonstrated lively affect, and intact

memory and concentration. Tr. 22 (citing Tr. 755-67). These all potentially undermine Plaintiff’s

symptom testimony, but must be reconciled with the fact that the ALJ identified somatic

symptom disorder as a medically determinable impairment (MDI) at step two. Tr. 15. Indeed,

there is notable overlap between the symptom testimony the ALJ rejected as unsupported and

symptoms associated with somatic symptom disorder. Compare Tr. 21-22 (rejecting complaints

of fatigue and weakness, brain fog, and pain as unsupported) with 20 C.F.R. Pt. 404, Subpt. P,

App. 1, § 12.00(B)(6)(a) (“pain ... other abnormalities of sensation… fatigue ... abnormal motor

movement [and] pseudoneurological symptoms” among symptoms of somatic symptom

disorder). The ALJ did not address Plaintiff’s somatic symptom disorder when concluding that

Plaintiff’s symptom testimony was overstated. See Tr. 21-22.

In fact, a lack of objective evidence supporting Plaintiff's claims of pain or symptoms

may support rather than undermine a claim of disability where somatic symptom disorder is an

MDI. See, e.g., Scott M. S. v. Comm’r of Soc. Sec. Admin., 2020 WL 1043444, at *3 (D. Or. Mar.

4, 2020) (“Thus, although the ALJ is correct that a disparity existed between plaintiff's

presentation/physical complaints and certain portions of the medical record, that disparity was

itself part of plaintiff's medical condition.”); see also John A. v. Saul, 2019 WL 2616594, at *3

(W.D. Wash. June 26, 2019) (ALJ erred when, “[r]ather than considering limitations associated

with a somatic symptom disorder, the ALJ utilized evidence associated with such an impairment

as a reason for rejecting plaintiff’s testimony.”). While the testimony of claimants with somatic

symptom disorder or a related impairment need not be accepted uncritically, the ALJ ought to

address the possibility that discrepancies in such cases are “evidence of impairment, as opposed

to evidence of malingering or exaggeration for secondary gain.” Reyes v. Colvin, 2016 WL

6651259, at *5 (C.D. Cal. Nov. 9, 2016). Because the ALJ did not discuss somatic symptom

disorder in his decision, the Court cannot conclude that he addressed the possibility that the

identified discrepancies can be attributed to somatic symptom disorder. Accordingly, the ALJ

failed to provide clear and convincing reasons for rejecting Plaintiff's subjective symptom

testimony about mental health issues as inconsistent with the objective medical evidence either.

B. Conservative Treatment

The ALJ also found Plaintiff’s symptom testimony about her mental health was

inconsistent with a history of conservative treatment. Tr. 22. Conservative treatment can be

sufficient to discount a claimant's subjective testimony regarding the limitations caused by an

impairment. Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007). Not seeking an “aggressive

treatment program” permits the inference that symptoms were not as all-disabling as the claimant

reported. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). The amount of treatment is

“an important indicator of the intensity and persistence of [a claimant’s] symptoms.” 20 C.F.R. §

416.929(c)(3). If, however, the claimant has a good reason for not seeking more aggressive

treatment, conservative treatment is not a proper basis for rejecting the claimant's subjective

symptoms. Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008)

The ALJ erred by rejecting Plaintiff’s symptom testimony because her treatment for those

symptoms was “conservative.” While conservative treatment can be a sufficient reason to

discount a Plaintiff’s symptom testimony, the ALJ must provide more justification than he did

here. The ALJ summarized Plaintiff’s treatment as conservative in one sentence, reasoning that

“she treated conservatively with therapy.” Tr. 22. Because the ALJ did not specify what more

aggressive treatment options were appropriate or available, it would be illogical to discredit

Plaintiff “for failing to pursue non-conservative treatment options where none exist.” Lapeirre-

Gutt v. Astrue, 382 F. App'x 662, 664 (9th Cir. 2010). The absence of a recommendation to

pursue more aggressive treatment is typically a good reason for a plaintiff not to pursue more

aggressive treatment. See Alfredo C. v. Saul, 2020 WL 836833, at *5 (D. Or. Feb. 20, 2020)

(“The ALJ in this case does not cite any statement by a medical professional suggesting that

Plaintiff's course of treatment was conservative.”). The ALJ points to no recommendations

Plaintiff failed to follow. See Tr. 22. And the lack of inpatient hospitalization is not evidence of

conservative treatment in the context of complex mental health disorders either. See, e.g., Choat

v. Berryhill, 2018 WL 2048332, at *5 (D. Or. Apr. 30, 2018) (so stating and collecting cases).

Given this well-developed body of law, the ALJ’s conclusion that Plaintiff’s subjective symptom

testimony is undermined by a history of conservative treatment is not supported by substantial

evidence.

C. Daily Activities

The ALJ also discounted Plaintiff’s subjective symptom testimony because it was

inconsistent with her daily activities. Tr. 23. Activities of daily living can form the basis for an

ALJ to discount a claimant’s testimony in two ways: (1) as evidence a claimant can work if the

activities “meet the threshold for transferable work skills”; or (2) where the activities “contradict

[a claimant’s] testimony.” Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). The relevant

regulations require an ALJ to consider a claimant’s daily activities when evaluating subjective

symptom statements. 20 C.F.R. §§ 404.1529(c)(3)(i), 416.929(c)(3)(i). The Ninth Circuit has

even found such routine activities as playing video games, using public transportation, and

preparing meals to undercut a claimant’s testimony of disabling limitations. Ahearn v. Saul, 988

F.3d 1111, 1117 (9th Cir. 2021). The ALJ found Plaintiff’s ability to “perform a wide array of

activities despite her impairments” such as driving, shopping, paying bills, crocheting, and

sewing undermines her testimony about “severe and debilitating mental” symptoms. Tr. 23.

None of the activities the ALJ listed directly undermines Plaintiff’s testimony about her

physical or mental health limitations, nor does the ALJ sufficiently connect the dots to explain

which activity supposedly undermines which piece of testimony. To discount a Plaintiff’s

testimony, and ALJ must cite daily activities that “meet the threshold for transferable work

skills” or “contradict [a claimant’s] testimony.” Orn, 495 F.3d at 639. The ALJ cited Plaintiff’s

ability to shop, pay bills, crochet and sew, and drive herself around, but does not describe with

any specificity what testimony these activities undermine (for example, Plaintiff’s alleged

inability to sit for longer than 45 minutes). Tr. 23. The ability to crochet or sew does not take

away from any of Plaintiff’s mental or physical health allegations either. Tr. 23.2 It is not clear

from the ALJ’s opinion or Defendant’s brief which of these activities transfers to a “work skill,”

2 Defendant raises the impermissible post hoc rationalization that Plaintiff’s ability to sew

or crochet undermined Plaintiff’s testimony about problems concentrating. Tr. 45-46. The ALJ

did not make this inference. See Tr. 23. Because the Court is constrained to review “the reasons

the ALJ asserts,” Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003), the Court does not

consider this argument.

or contradicts any piece of Plaintiff’s testimony. See Brown-Hunter v. Colvin, 806 F.3d 487, 494

(9th Cir. 2015) (noting that an ALJ must “identify the testimony she found not credible, she did

not link that testimony to the particular parts of the record supporting her non-credibility

determination”). It was error for the ALJ to rely on this as a basis to discount Plaintiff’s

subjective symptom testimony because substantial evidence does not support the conclusion that

Plaintiff’s daily activities undermine her symptom testimony.

II. Medical Opinion Evidence

For disability claims filed on or after March 27, 2017, the ALJ no longer “weighs”

medical opinions but instead determines which are most “persuasive.” 20 C.F.R. §§

404.1520c(a). The 2017 regulations eliminated the hierarchy of medical opinions and state that

the agency does not defer to any particular medical opinions, even those from treating sources.

Id.; see also Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022) (“The revised social security

regulations are clearly irreconcilable with our caselaw according special deference to the

opinions of treating and examining physicians on account of their relationship with the

claimant.”). Under the 2017 regulations, the ALJ primarily considers the “supportability” and

“consistency” of the opinions in determining whether an opinion is persuasive. 20 C.F.R. §

404.1520c(c). Supportability is determined by whether the medical source presents explanations

and objective medical evidence to support their opinions. Id. § 404.1520c(c)(1). Consistency is

determined by how consistent the opinion is with evidence from other medical and nonmedical

sources. Id. § 404.1520c(c)(2).

An ALJ may also consider a medical source’s relationship with the claimant by looking

at factors such as the length, purpose, or extent of the treatment relationship, the frequency of the

claimant’s examinations, and whether there is an examining relationship. Id. § 404.1520c(c)(3).

An ALJ is not, however, required to explain how she considered those secondary medical factors

unless she finds that two or more medical opinions about the same issue are equally well-

supported and consistent with the record but not identical. Id. § 404.1520c(b)(2)- (3).

The regulations require ALJs to “articulate . . . how persuasive [they] find all of the

medical opinions” and “explain how [they] considered the supportability and consistency

factors.” Id. § 404.1520c(c)(b). The court must, moreover, continue to consider whether the

ALJ’s analysis has the support of substantial evidence. See 42 U.S.C. § 405(g); Woods, 32 F.4th

at 792 (“Even under the new regulations, an ALJ cannot reject an examining or treating doctor’s

opinion as unsupported or inconsistent without providing an explanation supported by substantial

evidence.”).

A. Dr. Kris Hallenburg, Ph.D.

The agency referred Plaintiff to Dr. Hallenburg in November 2019 for a consultative

psychological examination. Tr. 760. Dr. Hallenburg reviewed available medical records and

conducted a clinical interview and mental status examination. Tr. 760-66. Plaintiff reported

experiencing mood swings from depression to anger to crying, which were primarily triggered by

flashbacks of past trauma. Tr. 760-61. Her past trauma included sexual abuse by her father and

grandfather. Tr. 761. She experienced flashbacks about once a month. Tr. 761. She experienced

two or three depressive episodes each month, during which she stayed in bed. Tr. 760. She had

difficulty reading and staying on task. Tr. 761. She last attended counseling in 2016; she stopped

after eight sessions because her insurance coverage ended. Tr. 761. She had experienced

domestic violence as an adult. Tr. 762. She reported a history of short-term jobs, many of which

she had been fired from. Tr. 763. Dr. Hallenburg noted that Plaintiff had many stories about

mistreatment by employers and showed little understanding about her contribution to those

terminations. Tr. 763. She spent most of her days managing her physical pain. Tr. 764.

Dr. Hallenburg observed that Plaintiff was very talkative and quite dramatic. Tr. 764. Her

stream of mental activity was fairly tangential and poorly organized, but usually relevant to

topic. Tr. 764. Her speech was expansive, rambling, and lively. Tr. 764. She demonstrated

delayed recall, remembering only two out of four words after a ten-minute delay. Tr. 765. She

performed one set of seven digits forward and a set of three digits backward. Tr. 765. Her

abstract thinking was impaired. Tr. 765. She demonstrated very poor insight. Tr. 765. Dr.

Hallenburg noted obvious contradictions in Plaintiff’s self-reports, and that she reported

expansive, grandiose events in her life that were unlikely to be true with little judgment as to the

likelihood of being caught in a lie. Tr. 765-66. He found that Plaintiff had little insight into her

mental health symptoms, much less being able to manage them. Tr. 766.

Dr. Hallenburg diagnosed unspecified bipolar and related disorder; somatic symptom

disorder with persistent pain, mild; rule-out ADHD; and other specified personality disorder with

cluster B traits. Tr. 766. She noted that it was difficult to adequately identify a diagnosis for

Plaintiff. Tr. 766. She wrote, “It was helpful to have past psychological evaluations that

continually indicated discrepancies in reporting; this assessment followed suit.” Tr. 766. She

noted that Plaintiff often lost track and contradicted herself in reporting information. Tr. 766. She

assessed that Plaintiff’s history exemplified traits of consistent irresponsibility, impulsivity,

failure to plan ahead, repeated lying, attention seeking, shallow emotions, excessive

emotionality, self-dramatization, exaggeration, and dramatic expression of emotions. Tr. 766.

She assessed a poor prognosis. Tr. 766. She assessed moderate impairment in the ability to make

judgments on simple work-related decisions; understand, remember, and carry out complex

instructions; and interact appropriately with supervisors. Tr. 757-58. She assessed marked

impairment in her ability to make judgments on complex work-related decisions; interact

appropriately with the public and coworkers; and respond appropriately to usual work situations

and to changes in a routine work setting. Tr. 757-58.

The ALJ found Dr. Hallenburg’s opinion unpersuasive. Tr. 22. The ALJ specifically

found it was inconsistent with Plaintiff’s conservative treatment, and objective medical evidence

showing that her concentration and memory were intact. Tr. 22. The ALJ also cited records

showing Plaintiff had an appropriate mood, appropriate affect, she was calm, and had normal

speech. The ALJ further relied on medical evidence showing her thought process was intact, she

had no delusions, she had good judgment and insight, and she was not suicidal. Tr. 22 (citing Tr.

325-460).

Regarding “supportability,” the ALJ erred by failing to discuss the strength of the

evidence underlying Dr. Hallenburg’s conclusions. The supportability factor requires ALJs to

consider the persuasiveness of a medical opinion based on how “relevant the objective medical

evidence and supporting explanations presented by a medical source are to support his or her

medical opinion.” 20 C.F.R. § 404.1520c(c)(1). Here, the ALJ discounted Dr. Hallenburg’s

opinion by finding it conflicted with chart notes from medical examinations with other medical

providers, which Dr. Hallenburg does not cite in his opinion. Tr. 22 (citing Tr. 325-460). The

ALJ neglected to address the multitudinous medical records Dr. Hallenburg cited in support of

her opinion, as required by § 404.1520c(c)(1). Nor did the ALJ consider the context of these

more positive chart notes, which were checkmark responses documented in counseling records—

most of which predate the period at issue—and disregarded the narratives of those chart notes,

which support and are entirely consistent with Dr. Hallenburg’s clinical observations and

conclusions. See Tr. 22 (citing a one-line conclusion in a 39-page clinical note that Plaintiff was

“oriented to time, place, person & situation”). Given that these examinations were largely

focused on Plaintiff’s physical symptoms, and do not come from a psychiatric visit, these

medical records do not detract from Dr. Hallenburg’s opinions regarding Plaintiff's mental

health. See, e.g., Tr. 288 (noting that “We had planned to discuss mood, but more pressing

matters of lab results, bowels take precedent [sic]”). Because the ALJ failed to consider the

supportability factor, discounting Dr. Hallenburg’s opinion was error.

Nor did the ALJ adequately address the consistency factor when discrediting Dr.

Hallenburg’s opinion. The consistency factor requires the ALJ to assess medical opinions’

alignment with “evidence from other medical sources and nonmedical sources in the claim.” 20

C.F.R. § 404.1520c(c)(2). At a minimum, this means the ALJ must specifically account for the

other relevant medical evidence when addressing the persuasiveness of a medical opinion. See

Kevin R. H. v. Saul, 2021 WL 4330860, at *4 (D. Or. Sept. 23, 2021). The ALJ cited Plaintiff’s

chart notes from one internal medicine clinic when discounting Dr. Hallenburg’s opinion, but

failed to account for the large majority of other, highly relevant “evidence from other medical

sources” in the record, such as Plaintiff’s other mental health records. See, e.g., Tr. 510. This was

error. The Court finds that the ALJ failed to sufficiently address the consistency and

supportability factors, and did not rely on substantial evidence when determining that Dr.

Hallenburg’s opinion was unpersuasive and inconsistent with the record.

B. Dr. Robert Basham, Ph.D.

Dr. Basham examined Plaintiff twice in two parental comprehensive psychological

evaluations for the Department of Human Services (“DHS”), first in October 2015, and then

again in October 2016. Tr. 701-11, 506-681. At the first examination, Dr. Basham reviewed

available medical records and administered a clinical interview, mental status examination, and

several psychometric tests, including the Kaufman Brief Intelligence Test—Second Edition

(“KBIT-2”), the Minnesota Multiphasic Personality Inventory (“MMPI-2”), and the Personality

Inventory (“PAI”). Tr. 521-22. Dr. Basham made findings similar to Dr. Hallenburg in terms of

Plaintiff’s past trauma, and current symptoms. See Tr. 522. The KBIT-2 revealed an IQ

composite score of 89. Tr. 527. Validity scales on the MMPI-2 indicated that her profile was

valid and mildly defensive with significant denial. Tr. 527. PAI validity scales indicated that

Plaintiff’s profile was valid and moderately defensive. Tr. 527. Dr. Basham noted that

interactions between Plaintiff and DHS demonstrated both denial and a pattern of fabrication

and/or embellishing the truth in a self-serving manner. Tr. 528.

At the second exam the following year, Dr. Basham observed similar symptoms. Tr. 511-

12. Dr. Basham noted that although Plaintiff had participated in services over the past year, she

had not shown progress and continued to demonstrate poor awareness and/or judgment. Tr. 511.

Dr. Basham diagnosed PTSD; adjustment disorder with mixed anxiety and depressed mood; and

other specified personality disorder with narcissistic and paranoid features. Tr. 518. He assessed

that Plaintiff’s denial and narcissistic personality traits were a major threat to her parenting. Tr.

518. He opined that mental health therapy could reduce her anxiety symptoms but was unlikely

to result in significant gains in her personality problems. Tr. 518. He concluded that her son

would be at risk if returned to her care. Tr. 519.

The ALJ disregarded Dr. Basham’s 2015 & 2016 opinions as too remote to be relevant to

Plaintiff’s alleged disability beginning May 18, 2017. The ALJ also “note[d] that these opinions

were rendered in the context of child endangerment cases and were not issued with specific

consideration of the rules and regulations applicable to the claimant’s instant application for

disability.” Tr. 23.

The ALJ erred in finding Dr. Basham’s opinion unpersuasive because he did not consider

the supportability or consistency of his conclusions. Tr. 20. Supportability and consistency are

the two most important factors in assessing the persuasiveness of a medical opinion and an ALJ

must consider them for every medical opinion in the record. 20 C.F.R. § 404.1520c(b)(2) (“we

will explain how we considered the supportability and consistency factors for a medical source’s

medical opinions…”) (emphasis added). First, the ALJ erred by disregarding Dr. Basham’s

opinion as too remote from the relevant period. The Ninth Circuit has held that an ALJ is

required to consider all medical opinions in the record and has construed this rule to include

opinions that predate the alleged onset date. 20 C.F.R. § 404.1520c(b); Tommasetti v. Astrue,

533 F.3d 1035, 1041 (9th Cir. 2008) (“The ALJ must consider all medical opinion evidence.”);

see also Williams v. Astrue, 493 Fed. Appx. 866, 868 (9th Cir. 2012) (ALJ erred by silently

disregarding medical opinions that predated alleged disability onset date). The ALJ also erred by

rejecting Dr. Basham’s opinion because he saw Plaintiff “in the context of child endangerment

cases.” Tr. 23. The context for a visit is relevant to the “purpose of the treating relationship,” 20

C.F.R. § 404.1520c(3)(iii), but does not speak to either supportability or consistency of the

underlying medical evidence under the § 404.1520c(1-2). The ALJ provided no other analysis of

the strength of Dr. Basham’s conclusion or its consistency with other medical evidence. The

ALJ’s summary rejection of Dr. Basham’s opinion deprives the court of its ability to conduct a

meaningful review, and was error for failure to consider the supportability and consistency

factors.

III. Remand

When a court determines the Commissioner erred in denying benefits, the court may

affirm, modify, or reverse the Commissioner’s decision “with or without remanding the cause for

a rehearing.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014)

(quoting 42 U.S.C. § 405(g)). In determining whether to remand for further proceedings or the

immediate payment of benefits, the Ninth Circuit employs the following “credit-as-true”

standard when the following requisites are met: (1) the ALJ has failed to provide legally

sufficient reasons for rejecting evidence; (2) the record has been fully developed and further

proceedings would serve no useful purpose; and (3) if the improperly discredited evidence were

credited as true, the ALJ would be required to find the plaintiff disabled on remand. Garrison v.

Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). If all three requisites are met, the court may remand

for benefits. Id. However, even if all of the requisites are met, the court may still remand for

further proceedings “when the record as a whole creates serious doubt as to whether the claimant

is, in fact, disabled.” Id. at 1021.

Here, the first requisite is met because the ALJ erroneously rejected Plaintiff’s symptom

testimony and Dr. Hallenburg and Dr. Basham’s medical opinions. Further proceedings would be

useful for the ALJ to properly consider Plaintiff’s testimony in light of her somatic symptom

disorder, to consider the supportability and consistency of the medical opinions of Doctors

Hallenburg and Basham as required by the regulations, and to reformulate the RFC to

incorporate limitations from these two categories of evidence if necessary. Therefore, this case is

reversed and remanded for further proceedings so that the ALJ can re-evaluate Plaintiff’s

testimony, re-evaluate the opinions of Doctors Hallenburg and Basham, reformulate the RFC if

necessary, and seek further VE testimony at step five, if necessary.

CONCLUSION

For the reasons given above, I REVERSE the Commissioner’s decision and REMAND

this case for further proceedings.

IT IS SO ORDERED.

DATED: 1/23/2024 .

Wochath U/ VWhoaman

MICHAEL W. MOSMAN

United States District Judge

19 — OPINION & ORDER