Morton v. Saul

1

2

FILED IN THE

U.S. DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

3

Aug 20, 2020

4 SEAN F. MCAVOY, CLERK

5 UNITED STATES DISTRICT COURT

6 EASTERN DISTRICT OF WASHINGTON

7 OLIVIA M.,1 No. 4:19-cv-05211-MKD

Plaintiff,

8 ORDER GRANTING PLAINTIFF’S

vs. MOTION FOR SUMMARY

9 JUDGMENT AND DENYING

ANDREW M. SAUL, DEFENDANT’S MOTION FOR

10 COMMISSIONER OF SOCIAL SUMMARY JUDGMENT

SECURITY,

11 Defendant. ECF Nos. 14, 15

12

Before the Court are the parties’ cross-motions for summary judgment. ECF

13

Nos. 14, 15. The parties consented to proceed before a magistrate judge. ECF No.

14

7. The Court, having reviewed the administrative record and the parties’ briefing,

15

16

17

18 1 To protect the privacy of plaintiffs in social security cases, the undersigned

19 identifies them by only their first names and the initial of their last names. See

20 LCivR 5.2(c).

1 is fully informed. For the reasons discussed below, the Court grants Plaintiff’s

2 motion, ECF No. 14, and denies Defendant’s motion, ECF No. 15.

3 JURISDICTION

4 The Court has jurisdiction over this case pursuant to 42 U.S.C. § 405(g).

5 STANDARD OF REVIEW

6 A district court’s review of a final decision of the Commissioner of Social

7 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is

8 limited; the Commissioner’s decision will be disturbed “only if it is not supported

9 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153,

10 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a

11 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159

12 (quotation and citation omitted). Stated differently, substantial evidence equates to

13 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and

14 citation omitted). In determining whether the standard has been satisfied, a

15 reviewing court must consider the entire record as a whole rather than searching

16 for supporting evidence in isolation. Id.

17 In reviewing a denial of benefits, a district court may not substitute its

18 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152,

19 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one

20 rational interpretation, [the court] must uphold the ALJ’s findings if they are

1 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674

2 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an

3 ALJ’s decision on account of an error that is harmless.” Id. An error is harmless

4 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination.”

5 Id. at 1115 (quotation and citation omitted). The party appealing the ALJ’s

6 decision generally bears the burden of establishing that it was harmed. Shinseki v.

7 Sanders, 556 U.S. 396, 409-10 (2009).

8 FIVE-STEP EVALUATION PROCESS

9 A claimant must satisfy two conditions to be considered “disabled” within

10 the meaning of the Social Security Act. First, the claimant must be “unable to

11 engage in any substantial gainful activity by reason of any medically determinable

12 physical or mental impairment which can be expected to result in death or which

13 has lasted or can be expected to last for a continuous period of not less than twelve

14 months.” 42 U.S.C. § 423(d)(1)(A). Second, the claimant’s impairment must be

15 “of such severity that he is not only unable to do his previous work[,] but cannot,

16 considering his age, education, and work experience, engage in any other kind of

17 substantial gainful work which exists in the national economy.” 42 U.S.C. §

18 423(d)(2)(A).

19 The Commissioner has established a five-step sequential analysis to

20 determine whether a claimant satisfies the above criteria. See 20 C.F.R. §

1 404.1520(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s

2 work activity. 20 C.F.R. § 404.1520(a)(4)(i). If the claimant is engaged in

3 “substantial gainful activity,” the Commissioner must find that the claimant is not

4 disabled. 20 C.F.R. § 404.1520(b).

5 If the claimant is not engaged in substantial gainful activity, the analysis

6 proceeds to step two. At this step, the Commissioner considers the severity of the

7 claimant’s impairment. 20 C.F.R. § 404.1520(a)(4)(ii). If the claimant suffers

8 from “any impairment or combination of impairments which significantly limits

9 [his or her] physical or mental ability to do basic work activities,” the analysis

10 proceeds to step three. 20 C.F.R. § 404.1520(c). If the claimant’s impairment

11 does not satisfy this severity threshold, however, the Commissioner must find that

12 the claimant is not disabled. 20 C.F.R. § 404.1520(c).

13 At step three, the Commissioner compares the claimant’s impairment to

14 severe impairments recognized by the Commissioner to be so severe as to preclude

15 a person from engaging in substantial gainful activity. 20 C.F.R. §

16 404.1520(a)(4)(iii). If the impairment is as severe or more severe than one of the

17 enumerated impairments, the Commissioner must find the claimant disabled and

18 award benefits. 20 C.F.R. § 404.1520(d).

19 If the severity of the claimant’s impairment does not meet or exceed the

20 severity of the enumerated impairments, the Commissioner must pause to assess

1 the claimant’s “residual functional capacity.” Residual functional capacity (RFC),

2 defined generally as the claimant’s ability to perform physical and mental work

3 activities on a sustained basis despite his or her limitations, 20 C.F.R. §

4 404.1545(a)(1), is relevant to both the fourth and fifth steps of the analysis.

5 At step four, the Commissioner considers whether, in view of the claimant’s

6 RFC, the claimant is capable of performing work that he or she has performed in

7 the past (past relevant work). 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant is

8 capable of performing past relevant work, the Commissioner must find that the

9 claimant is not disabled. 20 C.F.R. § 404.1520(f). If the claimant is incapable of

10 performing such work, the analysis proceeds to step five.

11 At step five, the Commissioner considers whether, in view of the claimant’s

12 RFC, the claimant is capable of performing other work in the national economy.

13 20 C.F.R. § 404.1520(a)(4)(v). In making this determination, the Commissioner

14 must also consider vocational factors such as the claimant’s age, education, and

15 past work experience. 20 C.F.R. § 404.1520(a)(4)(v). If the claimant is capable of

16 adjusting to other work, the Commissioner must find that the claimant is not

17 disabled. 20 C.F.R. § 404.1520(g)(1). If the claimant is not capable of adjusting to

18 other work, analysis concludes with a finding that the claimant is disabled and is

19 therefore entitled to benefits. 20 C.F.R. § 404.1520(g)(1).

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1 The claimant bears the burden of proof at steps one through four above.

2 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to

3 step five, the burden shifts to the Commissioner to establish that 1) the claimant is

4 capable of performing other work; and 2) such work “exists in significant numbers

5 in the national economy.” 20 C.F.R. § 404.1560(c)(2); Beltran v. Astrue, 700 F.3d

6 386, 389 (9th Cir. 2012).

7 ALJ’S FINDINGS

8 On July 10, 2015, Plaintiff applied for Title II disability insurance benefits

9 alleging a disability onset date of September 13, 2013. Tr. 18, 73, 161-67. The

10 application was denied initially and on reconsideration. Tr. 100-02, 104-06.

11 Plaintiff appeared before an administrative law judge (ALJ) on June 12, 2018. Tr.

12 36-72. On July 30, 2018, the ALJ denied Plaintiff’s claim. Tr. 15-33.

13 At step one of the sequential evaluation process, the ALJ found Plaintiff,

14 who met the insured status requirements through December 31, 2018, had not

15 engaged in substantial gainful activity since September 13, 2013. Tr. 20. At step

16 two, the ALJ found that Plaintiff had the following severe impairments: history of

17 carpal tunnel syndrome of the right upper extremity, status-post cubital and carpal

18 tunnel surgery; mild to moderate carpal tunnel syndrome of the left upper

19 extremity, and arthritis of the knees and low back. Tr. 20.

20

1 At step three, the ALJ found Plaintiff does not have an impairment or

2 combination of impairments that meets or medically equals the severity of a listed

3 impairment. Tr. 22. The ALJ then concluded that Plaintiff has the RFC to perform

4 sedentary work with the following limitations:

5 [Plaintiff has] a standing and/or walking capacity of two hours total in an

eight-hour workday. She can never climb ladders, ropes, or scaffolds, and

6 can only occasionally stoop, crouch, kneel, crawl, and climb ramps and

stairs. She cannot push, pull, or reach overhead with the right upper

7 extremity, but she could frequently handle and finger, and she must avoid all

exposure to unprotected heights and use of moving or dangerous machinery.

8

Tr. 22-23.

9

At step four, the ALJ found Plaintiff was capable of performing her past

10

relevant work as a medical record auditor, medical record coder, and hospital

11

collection clerk. Tr. 26-27. In the alternative, at step five, the ALJ found that,

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considering Plaintiff’s age, education, work experience, RFC, and testimony from

13

a vocational expert, there were other jobs that existed in significant numbers in the

14

national economy that Plaintiff could perform, such as telephone information clerk

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and document preparer. Tr. 27. Therefore, the ALJ concluded Plaintiff was not

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under a disability, as defined in the Social Security Act, from September 13, 2013,

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the alleged onset date, through the date of the decision. Tr. 27.

18

On June 17, 2019, the Appeals Council denied review of the ALJ’s decision,

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Tr. 1-6, making the ALJ’s decision the Commissioner’s final decision for purposes

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of judicial review. See 42 U.S.C. § 1383(c)(3).

1 ISSUES

2 Plaintiff seeks judicial review of the Commissioner’s final decision denying

3 her disability insurance benefits under Title II of the Social Security Act. Plaintiff

4 raises the following issues for review:

5 1. Whether the ALJ properly evaluated the medical opinion evidence;

6 2. Whether the ALJ properly evaluated Plaintiff’s symptom claims;

7 3. Whether the ALJ conducted a proper step-two analysis;

8 4. Whether the ALJ conducted a proper step-three analysis;

9 5. Whether the ALJ conducted a proper step-four analysis; and

10 6. Whether the ALJ conducted a proper step-five analysis.

11 ECF No. 14 at 7.

12 DISCUSSION

13 A. Medical Opinion Evidence

14 Plaintiff challenges the ALJ’s evaluation of the medical opinions of Adrian

15 Heap, M.D. and Andrea Shadrach, Psy.D. ECF No. 14 at 10-13.

16 There are three types of physicians: “(1) those who treat the claimant

17 (treating physicians); (2) those who examine but do not treat the claimant

18 (examining physicians); and (3) those who neither examine nor treat the claimant

19 but who review the claimant’s file (nonexamining or reviewing physicians).”

20 Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (brackets omitted).

1 “Generally, a treating physician’s opinion carries more weight than an examining

2 physician’s, and an examining physician’s opinion carries more weight than a

3 reviewing physician’s.” Id. “In addition, the regulations give more weight to

4 opinions that are explained than to those that are not, and to the opinions of

5 specialists concerning matters relating to their specialty over that of

6 nonspecialists.” Id. (citations omitted).

7 If a treating or examining physician’s opinion is uncontradicted, the ALJ

8 may reject it only by offering “clear and convincing reasons that are supported by

9 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005).

10 “However, the ALJ need not accept the opinion of any physician, including a

11 treating physician, if that opinion is brief, conclusory, and inadequately supported

12 by clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228

13 (9th Cir. 2011) (internal quotation marks and brackets omitted). “If a treating or

14 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ

15 may only reject it by providing specific and legitimate reasons that are supported

16 by substantial evidence.” Bayliss, 427 F.3d at 1216 (citing Lester v. Chater, 81

17 F.3d 821, 830–31 (9th Cir. 1995). The opinion of a nonexamining physician may

18 serve as substantial evidence if it is supported by other independent evidence in the

19 record. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995).

20

1 1. Dr. Heap

2 Plaintiff’s treating physician, Adrian Heap, M.D., completed a medical

3 source statement on January 2, 2018. Tr. 884-86. Dr. Heap was Plaintiff’s treating

4 physician from 2012 until 2017.2 Tr. 884. Dr. Heap diagnosed Plaintiff with

5 chronic regional plain complex of the right arm and hand secondary to ulna nerve

6 decompression and carpal tunnel release surgery in September 2011. Tr. 884. Dr.

7 Heap described Plaintiff as having arm pain from the elbow to right hand, “severe

8 neuropathic symptoms,” and developed mild arthritis symptoms in her knees and

9 back. Id. Dr. Heap opined that Plaintiff needed to lie down during the day due to

10 fatigue, pain, and narcolepsy symptoms. Id. Dr. Heap indicated Plaintiff’s

11 prognosis was poor due to “chronicity” and her “inability to pay for long term

12 therapy.” Id. at 886. Dr. Heap opined that regular and continuous work would

13 cause Plaintiff’s condition to deteriorate due to aggravation of pain with use; that it

14 was more probable than not Plaintiff would miss four or more days of work per

15 month due to exacerbation of neuropathic symptoms due to repetitive motion; and

16

17 2 The record contains Dr. Heap’s handwritten treatment notes dated April 26, 2012

18 through December 19, 2017, documenting 79 visits. Tr. 788-96, 878-83; Tr. 46-47

19 (noting frequency of visits). The ALJ’s decision erroneously states Dr. Heap only

20 treated Plaintiff until 2016. Tr. 25.

1 that her limitations have existed since April 2013. Id. at 885. Dr. Heap also

2 checked the description of “light work” as the exertional level Plaintiff could

3 perform, other than the ability to lift 20 pounds maximum. Id. Dr. Heap

4 commented Plaintiff has a chronic disabling condition, and that Plaintiff may be

5 able to seek help at a regional pain center if she had the funds or insurance

6 available. Id. at 886.

7 The ALJ gave Dr. Heap’s opinion little weight. Tr. 25. Because Dr. Heap’s

8 opinion (regarding the need to lie down, absenteeism, and the exacerbation of

9 symptoms due to repetitive motions) was contradicted by the opinions of James

10 Irwin, M.D., Tr. 93-95, James Gaddy, M.D., Tr. 804-08, and Kingsley Ugorji,

11 M.D, Tr. 820-26, the ALJ was required to provide specific and legitimate reasons

12 for discounting Dr. Heap’s opinion. Bayliss, 427 F.3d at 1216.

13 a. Unsupported by Treatment Notes

14 Dr. Heap’s treatment notes, which document approximately 74 office visits

15 over a five-year period, are handwritten and include the date of treatment and a

16 short statement. Tr. 788-96; Tr. 878-83. The ALJ accorded little weight to Dr.

17 Heap’s assessment because his treatment notes were “incredibly limited and [were]

18 not legible.” Tr. 25. Though the ALJ found the notes illegible, the ALJ did not

19 attempt to obtain some readable form of the records.

20

1 A medical opinion may be rejected if it is unsupported by medical findings.

2 Bray, 554 F.3d at 1228; Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190,

3 1195 (9th Cir. 2004); Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002);

4 Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001); Matney v. Sullivan,

5 981 F.2d 1016, 1019 (9th Cir. 1992). Furthermore, a physician’s opinion may be

6 rejected if it is unsupported by the physician’s treatment notes. Connett v.

7 Barnhart, 340 F.3d 871, 875 (9th Cir. 2003). Relevant factors to evaluating any

8 medical opinion include the amount of relevant evidence that supports the opinion,

9 the quality of the explanation provided in the opinion, and the consistency of the

10 medical opinion with the record as a whole. Lingenfelter v. Astrue, 504 F.3d 1028,

11 1042 (9th Cir. 2007); Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007).

12 Plaintiff contends the ALJ erred because an independent examination of Dr.

13 Heap’s treatment notes reveals they are neither limited nor illegible, and they set

14 forth probative notes:

15 For example, (1) on December 12, 2013, Dr. Heap noted that the weather

was making her hand worse (Tr. 793); (2) on January 13, 2014, he noted a

16 diagnosis of regional pain syndrome in her arm (Tr. 793); (3) on February

11, 2014, he found that she required an ergonomic keyboard (Tr. 793); (4)

17 on October 9, 2014, he noted aching in her arm with the onset of cold

weather (Tr. 794); (5) on November 25, 2014, he noted that she was unable

18 to cope with her pain while off her medications since November 4, 2014 (Tr.

795); (6) on February 17, 2015, he noted carpal tunnel symptoms (Tr. 795);

19 (7) on August 6, 2015, he noted pain in her right arm from yard work (Tr.

796); (8) on September 24, 2015, he noted left arm symptoms and arthritis of

20 her knees (Tr. 878); (9) on October 22, 2015, he noted increasing symptoms

in her right arm, including neuropathic symptoms, as well as pain in her

1 knees (Tr. 878); (10) on December 21, 2015, he noted pain, severe headache,

and anxiety (Tr. 878); (11) on May 12, 2016, he noted continuous arm pain

2 (Tr. 879); (12) on November 4, 2016, he noted breakthrough pain in her arm

and back, with lack of sleep due to pain (Tr. 880); and (13) on October 26,

3 2017, he noted that her arm pain was not controlled (Tr. 883).

4 ECF No. 14 at 11-13. Plaintiff contends the legible parts of the notes are

5 consistent with Dr. Heap’s opinion and the ALJ erred in summarily dismissing it

6 based on brevity and legibility.

7 Dr. Heap’s treatment notes are not wholly indecipherable, though they are

8 certainly difficult to read and many are illegible.3 However, even assuming the

9 notes were entirely illegible as reasonably found by the ALJ, the issue on review is

10 not whether or not the ALJ’s assessment of legibility was correct, but rather

11 whether the record was inadequate to allow proper evaluation of medical evidence,

12 including Dr. Heap’s opinion. “The ALJ in a social security case has an

13 independent duty to fully and fairly develop the record and to assure that the

14 claimant’s interests are considered.” Tonapetyan, 242 F.3d at 1150 (quoting

15 Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir.1996)) (internal quotation marks

16 omitted). This duty is “triggered when the evidence is ambiguous or when the

17 record is inadequate to allow for proper evaluation of the evidence.” Mayes v.

18

19 3 In consultative examiner James Gaddy’s December 3, 2015 physical evaluation,

20 he also noted that Dr. Heap’s records were “essentially illegible.” Tr. 804.

1 Massanari, 276 F.3d 453, 460 (9th Cir. 2001); Thomas, 278 F.3d at 958. “An ALJ

2 is required to recontact a doctor only if the doctor’s report is ambiguous or

3 insufficient for the ALJ to make a disability determination.” Bayliss, 427 F.3d at

4 1217. “A specific finding of ambiguity or inadequacy of the record is not

5 necessary to trigger this duty to inquire, where the record establishes ambiguity or

6 inadequacy.” McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011); see Williams v.

7 Astrue, ED CV 08–549–PLA, 2010 WL 431432 (C.D. Cal. Feb. 1, 2010) (“the

8 ALJ’s finding that [doctor’s] treatment notes were unclear or illegible . . . should

9 have triggered his duty to clarify those ambiguities.”).

10 Here, the ALJ’s duty to further develop the record was triggered because the

11 medical evidence at issue was inadequate to allow for proper evaluation of the

12 medical evidence. Tonapetyan, 242 F.3d at 1150; Mayes, 276 F.3d at 459-60. Dr.

13 Heap was the only treating source to provide a medical opinion regarding

14 Plaintiff’s physical impairments, and his treatment notes span the period between

15 the time of Plaintiff’s alleged disability onset until six months prior to the date of

16 the administrative hearing. Tr. 47. His opinion is also the most recent medical

17 opinion. Tr. 886. The RFC found Plaintiff capable of sedentary work involving

18 frequent handling and fingering. Tr. 22. Although the ALJ acknowledged Dr.

19 Heap was Plaintiff’s treating physician, the ALJ’s RFC did not account for any

20 impact of Plaintiff’s regional pain complex of the right arm and hand, Dr. Heap’s

1 finding that use of her right arm and hand aggravates her pain, or his opinion

2 Plaintiff would likely be absent from work on average four or more days a month.

3 Tr. 885. Based on the length of treatment relationship and frequency of visits, Dr.

4 Heap was in the best position to opine on Plaintiff’s physical condition. See

5 Lester, 81 F.3d at 833 (treating physician’s continuing relationship makes him

6 “especially qualified” to form a conclusion as to functional capacities and

7 limitations). The ALJ gave great weight to the May 2, 2016 physical functional

8 evaluation of Kingsley Ugorji, M.D., who evaluated Plaintiff only once. Tr. 25,

9 842-44. Yet, Dr. Ugorji’s patient instructions in the encounter note associated with

10 the evaluation state: “your right hand problems [] should limit [you] from do[ing]

11 any job that requires repeated use with [it].” Tr. 846. Accordingly, in this case,

12 the Dr. Heap’s treatment notes spanning a period of five years may be

13 consequential to the ultimate determination of the Plaintiff’s limitations. The

14 tension, if any, between the ALJ’s duty to develop the record and the Court’s duty

15 to uphold the ALJ’s conclusion where evidence is susceptible to more than one

16 rational interpretation, is resolved in favor of the Plaintiff in this case. Other courts

17 have held that illegibility was not a proper basis to disregard medical evidence of

18 this level of importance to the matter. See Manso-Pizarro v. Sec’y of Health &

19 Human Servs., 76 F.3d 15, 19 (1st Cir. 1996) (holding that “unreadable entries may

20 have some import” and “it is the duty of the ALJ, on remand, to make some effort

1 to decipher them”); Cutler v. Weinberger, 516 F.2d 1282, 1285 (2d Cir. 1975)

2 (“Where the medical records are crucial to the claimant's claim, illegibility of

3 important evidentiary material has been held to warrant a remand for further

4 clarification and supplementation.”); Miller v. Heckler, 756 F.2d 679, 680 (8th Cir.

5 1985) (“Where the medical records are crucial to the plaintiff’s claim, illegibility

6 of important evidentiary material has been held to warrant a remand for

7 clarification and supplementation.”); see also Garcia v. Colvin, No. CV 14-02528-

8 GW(KS), 2015 WL 7573653, at *8 (C.D. Cal. Nov. 25, 2015) (citing Burch v.

9 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (where a “physician’s documentation

10 is illegible and, therefore, inadequate to allow for proper evaluation of the medical

11 evidence, the ambiguity triggers the ALJ’s duty to develop the record.”); Armenta

12 v. Astrue, No. CV 11-10652-PLA, 2012 WL 4512491, at *6 (C.D. Cal. Oct. 1,

13 2012) (finding the ALJ failed to discharge his duty to recontact Plaintiff’s treating

14 physician for legible treatment records by simply continuing the administrative

15 hearings and ordering a consultative examination); Grice v. Astrue, No. CIV.A. 12-

16 3502, 2013 WL 2062263, at *3 (E.D. Pa. May 15, 2013) (finding reversible error

17 where the ALJ disregarded relevant treatment notes on the basis of illegibility);

18 Lewis v. Chater, No. 95 Civ. 5400 (WK), 1996 WL 752929 (S.D.N.Y. Dec. 2,

19 1996) (given the ALJ’s duty to develop the record, the ALJ should have directed

20 the treatment notes typed where they were “of vital importance in the assessment

1 of plaintiff’s medical condition” and the plaintiff had not responded to the ALJ’s

2 indirect request).

3 This error is not harmless. An error is harmful unless the reviewing court

4 “can confidently conclude that no reasonable ALJ, when fully crediting the

5 [evidence], could have reached a different disability determination.” Stout v.

6 Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1056 (9th Cir. 2006). Here, Dr. Heap

7 was the only treating physician to render an opinion and to opine Plaintiff had

8 physical limitations restricting her ability to repeatedly use her right arm and hand.

9 The vocational expert testified that limiting a right-hand dominant person to

10 occasional handling and fingering would preclude Plaintiff’s prior work and be

11 “work preclusive” in the field of sedentary unskilled occupations. Tr. 61, 63.

12 Based on this record, the Court cannot confidently conclude that the disability

13 determination would remain the same were the ALJ to fully credit Dr. Heap’s

14 opinion.

15 On remand, the ALJ should seek further development of the record to

16 resolve perceived inadequacies in the legibility of the treatment notes.

17 b. Plaintiff’s Work Activity

18 The ALJ also accorded little weight to Dr. Heap’s opinion because the

19 clinical test results he described included reference to an electromyography (EMG)

20 from January 2012 that showed conduction delay, yet Plaintiff worked for over a

1 year and half after the cited EMG. Tr. 25. “The ALJ may reject a medical opinion

2 that is inconsistent with the claimant’s work activity.” Schultz v. Berryhill, No.

3 3:16-cv-00757-JR, 2017 WL 2312951, at *4 (D. Or. Apr. 21, 2017) (citing

4 Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 692-93 (9th Cir. 2009)).

5 Moreover, working with an impairment supports a conclusion that the impairment

6 is not disabling. See Drouin v. Sullivan, 966 F.2d 1255, 1258 (9th Cir. 1992).

7 Here, Dr. Heap’s acknowledgment of the EMG does not conflict with the

8 assessed limitations that Plaintiff would need to lie down during the day and would

9 miss work “because of exacerbation of neuropathic symptoms due to repetitive

10 motions.” Tr. 884-85. The 2012 EMG cited by Dr. Heap showed entrapment of

11 the right median nerve at the wrist, consistent with a right carpal tunnel syndrome,

12 and conduction delay. Tr. 541. The EMG was performed, and Plaintiff was

13 cleared for work, over a year before Dr. Heap’s opinion indicates the limitations

14 existed in April 2013. Tr. 888. As is the case “with slowly progressive

15 impairments, it is sometimes impossible to obtain medical evidence establishing

16 the precise date an impairment became disabling. . . .” Social Security Ruling

17 (SSR) 83-20, 1983 WL 31249, *2 (S.S.A. 1983) (emphasis added). Although

18 Plaintiff returned to work as a medical record auditor for a hospital, she claims

19 ongoing pain prevented her from meeting the productivity expectations of her work

20 which then ended in September 2013. Tr. 42, 44-45. Plaintiff’s work activity took

1 place prior to Plaintiff’s alleged date of onset. Finally, besides the EMG, Dr.

2 Heap’s opinion also referenced other relevant findings including Plaintiff’s pain in

3 her right arm on “usage and touch.” Tr. 884. Accordingly, Dr. Heap’s reference to

4 the 2012 EMG study and Plaintiff’s subsequent work history was not a specific and

5 legitimate reason to discount Dr. Heap’s opinion in its entirety.

6 2. Dr. Shadrach

7 Dr. Shadrach, a psychologist, performed a psychological diagnostic

8 evaluation on January 17, 2016. Tr. 810-15. Dr. Shadrach diagnosed Plaintiff

9 with generalized anxiety disorder, with panic attacks. Tr. 813. Although Plaintiff

10 also reported problems with post traumatic stress disorder, Dr. Shadrach concluded

11 this self-diagnosis was not supported. Tr. 814. Dr. Shadrach opined Plaintiff’s

12 sustained concentration and persistence “requires more mental effort and is limited

13 as evidenced by digit span backward of three (DSB=3 digits), which suggests

14 impaired concentration and working memory capacity.” Id. In addition, she found

15 Plaintiff limited in social interaction and interpersonal relationships. Id. Dr.

16 Shadrach opined that Plaintiff’s ability to adapt to routine changes in a typical

17 work setting was “likely to be impacted by increasing anxiety, panic attacks with

18 rage, poor concentration, and limited working memory capacity.” Id. According

19 to Dr. Shadrach, the likelihood of Plaintiff’s mental health improving within 12

20

1 months was “fair,” as Plaintiff was willing to use available resources and consider

2 psychotherapy. Tr. 813.

3 The ALJ gave this opinion “partial or limited weight.” Tr. 21. Because Dr.

4 Shadrach’s opinion was contradicted by the nonexamining opinions of Jan Lewis,

5 Ph.D., Tr. 80-81, and Jerry Gardner, Ph.D., Tr. 95-96, the ALJ was required to

6 provide specific and legitimate reasons for discounting Dr. Shadrach’s opinion.

7 Bayliss, 427 F.3d at 1216.

8 a. Inconsistencies with the Record

9 The ALJ discounted Dr. Shadrach’s opinion because of “somewhat

10 conflicting or contradictory endorsements.” Tr. 21. Relevant factors to evaluating

11 any medical opinion include the amount of relevant evidence that supports the

12 opinion, the quality of the explanation provided in the opinion, and the consistency

13 of the medical opinion with the record as a whole. Lingenfelter, 504 F.3d at 1042;

14 Orn, 495 F.3d at 631.

15 Plaintiff contends the ALJ did not “explain any alleged inconsistencies.”

16 ECF No. 16 at 5. However, the Court disagrees. The ALJ described three areas he

17 considered “conflicting or contradictory endorsements.” Tr. 21. First, the ALJ

18 noted Dr. Shadrach’s diagnosis of generalized anxiety with panic attacks was

19 based entirely on Plaintiff’s self-report, Tr. 21, which contrasted with the lack of

20 other objective evidence, including the fact Plaintiff had never pursued any mental

1 health treatment (at that time) and there was “otherwise . . . no evidence of panic

2 attacks.” Tr. 21. Given the illegibility of some of Dr. Heap’s treatment records, it

3 is difficult for the Court to verify this statement (though panic attacks are not

4 mentioned in Dr. Heap’s medical opinion, Tr. 884-86). However, other than the

5 clinical interview with Dr. Shadrach, Plaintiff does not identify other objective

6 evidence in support of Dr. Shadrach’s diagnosis of panic attacks.4 ECF No. 16 at

7 5. The ALJ also contrasted the diagnosis of panic attacks with Dr. Shadrach’s

8 opinion that Plaintiff has the ability to perform simple and repetitive tasks and

9 could follow complex instructions. Tr. 21. Second, the ALJ noted Dr. Shadrach

10 had indicated Plaintiff’s concentration and working memory capacity were

11 impaired due to her digit span backward testing results, yet Dr. Shadrach also

12 found Plaintiff had adequate immediate memory for simple concrete information

13 and the good ability to retain and recall information after interference. Tr. 21.

14 Third, the ALJ found that Dr. Shadrach’s impression that Plaintiff had limited

15 ability to socially interact was not supported by the explanation provided which

16 was that Plaintiff had “no close friendships.” Tr. 21 (referring to Tr. 814). As the

17

18 4 It appears the only other mention of panic attacks in the medical record is in the

19 December 2015 physical evaluation of Dr. Gaddy, which noted Plaintiff had

20 described panic attacks “that appear work related.” Tr. 831.

1 ALJ acknowledged, Plaintiff was able to engage in daily activities, some of which

2 would require social interaction. Tr. 21 (describing cooking, grocery shopping,

3 housekeeping, laundry, and taking care of her disabled sister).

4 When viewed in light of the whole record, the limitations opined by Dr.

5 Shadrach were reasonably interpreted by the ALJ as both somewhat internally

6 inconsistent and conflicting with the record as a whole. Accordingly, this was a

7 specific and legitimate reason to discount Dr. Shadrach’s opinion.

8 b. Likelihood of Improvement

9 Finally, that although Dr. Shadrach found Plaintiff was limited by her

10 psychological condition, the ALJ noted that Plaintiff had never pursued any mental

11 health treatment and Dr. Shadrach opined the likelihood of improvement in the

12 next 12 months was “fair.” Tr. 21. Temporary limitations are not enough to meet

13 the durational requirement for a finding of disability. 20 C.F.R. § 404.1505(a)

14 (requiring a claimant’s impairment to be expected to last for a continuous period of

15 not less than twelve months). However, Dr. Shadrach’s prognosis of “fair” reflects

16 a prediction of future course or outcome of Plaintiff’s condition based upon her

17 amenability to psychotherapy treatment as recommended. As Plaintiff alleged

18 disability beginning September 13, 2013, optimism over future treatment is not a

19 specific and legitimate reason to discount Dr. Shadrach’s opinion. However,

20 because the ALJ identified other specific and legitimate reasons to discount Dr.

1 Shadrach’s opinion, this error is inconsequential to the overall disability

2 determination and is therefore harmless. See Stout, 454 F.3d at 1055.

3 B. Step Two

4 Plaintiff contends the ALJ erred in failing to find additional severe

5 impairments, including generalized anxiety disorder, several visual impairments,

6 medical epicondylitis, and chronic regional pain complex of the right arm and

7 hand. ECF No. 14 at 15-16.

8 At step two of the sequential process, the ALJ must determine whether the

9 claimant suffers from a “severe” impairment, i.e., one that significantly limits her

10 physical or mental ability to do basic work activities. 20 C.F.R. §

11 404.1520(a)(4)(ii); 20 C.F.R. § 404.1522. The ALJ must first determine whether

12 he or she has a medically determinable physical or mental impairment. 20 C.F.R.

13 § 404.1521. A medically determinable impairment “must result from anatomical,

14 physiological, or psychological abnormalities that can be shown by medically

15 acceptable clinical or laboratory diagnostic techniques.” 20 C.F.R. § 404.1521.

16 Therefore, a physical or mental impairment must be established by objective

17 medical evidence from an acceptable medical source.” Id. When considering

18 medically determinable mental impairments, the ALJ must first determine whether

19 such an impairment exists based on the claimant’s “symptoms, signs, and

20 laboratory findings.” 20 C.F.R. § 404.1520a(b)(1). A claimant’s “statement of

1 symptoms, a diagnosis, or a medical opinion” are not enough to establish a

2 medically determinable impairment. 20 C.F.R. § 404.1521.

3 An impairment may be found to be not severe when “medical evidence

4 establishes only a slight abnormality or a combination of slight abnormalities

5 which would have no more than a minimal effect on an individual’s ability to

6 work….” SSR 85-28, 1985 WL 56856, at *3 (1985). Similarly, an impairment is

7 not severe if it does not significantly limit a claimant’s physical or mental ability to

8 do basic work activities; which include walking, standing, sitting, lifting, pushing,

9 pulling, reaching, carrying, or handling; seeing, hearing, and speaking;

10 understanding, carrying out and remembering simple instructions; responding

11 appropriately to supervision, coworkers and usual work situations; and dealing

12 with changes in a routine work setting. 20 C.F.R. § 404.1522; SSR 85-28, 1985

13 WL 56856 (1985).5

14 When considering the severity of mental impairments, the ALJ considers the

15 “degree of functional limitation resulting from [the claimant’s] impairments” in

16 four broad areas of functioning: activities of daily living; social functioning;

17

18

5 The Supreme Court upheld the validity of the Commissioner’s severity

19

regulation, as clarified in SSR 85-28, in Bowen v. Yuckert, 482 U.S. 137, 153-54

20

(1987).

1 concentration, persistence or pace; and episodes of decompensation. 20 C.F.R.

2 Part 404, Subpt. P, App. 1, at 12.00(C). Functional limitation is measured as

3 “none, mild, moderate, marked, and extreme.” 20 C.F.R. § 404.1520a(c)(4). If

4 limitation is found to be “none” or “mild,” the impairment is generally considered

5 to not be severe. 20 C.F.R. § 404.1520a(d)(1).

6 Step two is “a de minimus screening device [used] to dispose of groundless

7 claims.” Smolen, 80 F.3d at 1290. “Thus, applying our normal standard of review

8 to the requirements of step two, [the Court] must determine whether the ALJ had

9 substantial evidence to find that the medical evidence clearly established that

10 [Plaintiff] did not have a medically severe impairment or combination of

11 impairments.” Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005).

12 1. Physical Impairments

13 Plaintiff contends the ALJ erred by failing to find Plaintiff’s vision problems

14 severe impairments at step two. Plaintiff claims her vision problems prevented her

15 from performing her past relevant work due to her inability to look at her computer

16 screen for extended periods. ECF No. 14 at 15 (citing Tr. 46, 871, 896). In

17 discussing Plaintiff’s vision problems, the ALJ found Plaintiff’s visual acuity test

18 results did not indicate more than minimal effect on Plaintiff’s ability to perform

19 basic work activities. Tr. 21 (citing Tr. 804-09, 816-19, 869-77, 894-96). While

20 the November 6, 2017 and May 8, 2018 eye examinations cited by Plaintiff

1 establish diagnoses, they do not establish these visual problems had any effect on

2 Plaintiff’s ability to work. ECF No. 14 at 15 (citing Tr. 871, 896). A mere

3 recitation of medical diagnoses does not demonstrate how each of the conditions

4 impacts Plaintiff’s ability to engage in basic work activities. Thus, Plaintiff has not

5 demonstrated that the ALJ erred as to Plaintiff’s visual impairments.

6 Plaintiff also contends the ALJ erred in not concluding her medial

7 epicondylitis and chronic regional pain complex of the right arm and hand were

8 severe because they result in a limitation to occasional handling and fingering.

9 ECF No. 14 at 16 (citing Tr. 793, 823, 884). Dr. Heap diagnosed Plaintiff with

10 chronic regional pain complex of the right arm and hand, Tr. 884, and Dr. Ugorji

11 diagnosed epicondylitis, Tr. 845. As noted above, Dr. Heap described Plaintiff as

12 having arm pain from the elbow to right hand and “severe neuropathic symptoms,”

13 which were aggravated with use. Tr. 884-85. The ALJ’s RFC did not include any

14 right-hand limitations and permitted frequent handling and fingering. Tr. 22. The

15 Court notes that this issue is related to the ALJ’s evaluation of Dr. Heap’s opinion.

16 Given the error in evaluating the medical evidence, the Court directs that the ALJ

17 reevaluate all of the Plaintiff’s right upper extremity impairments and the step two

18 findings on remand.

19

20

1 2. Mental Impairments

2 Plaintiff contends the ALJ additionally erred at step two by finding

3 Plaintiff’s generalized anxiety disorder with panic attacks a non-severe

4 impairment. ECF No. 14 at 15. Specifically, Plaintiff contends that the

5 assessments of Dr. Shadrach (Tr. 810-14) and Deborah Smith, Ed.M./LMHC (Tr.

6 897-901, 911-22) establish harmful error at step two where associated mental

7 limitations were not included in the RFC. ECF No. 14 at 15; ECF No. 16 at 7.

8 Plaintiff contends the evidence satisfying her burden of proving a severe mental

9 impairment includes evidence she suffers from symptoms of irritability, frustration,

10 tearfulness, angry outbursts, and limitations in concentration, working memory,

11 and interacting with others. Id.

12 The ALJ concluded Plaintiff’s anxiety did not cause more than minimal or

13 temporary limitations in Plaintiff’s ability to perform basic mental work activities.

14 Tr. 21. In concluding Plaintiff’s mental impairment was non-severe, the ALJ

15 analyzed and discounted the assessments of Dr. Shadrach and Ms. Smith, as well

16 as the state agency physicians whom the ALJ noted had “simply indicated that

17 [Plaintiff] had no friends and tended to be opinionated and irritable, with Dr.

18 Gardner adding that she was best suited for isolated work with limited contact with

19 coworkers, supervisors, and the general public.” Tr. 21-22.

20

1 In finding Plaintiff’s anxiety was non-severe, this type of error is ordinarily

2 harmless where the ALJ otherwise proceeds with the sequential analysis.

3 However, because the ALJ did not identify any severe mental impairment or

4 mental limitations the Court must consider whether harmful error exists. As

5 explained above, the ALJ properly discounted the assessment of Dr. Shadrach

6 based upon inconsistencies with the record. Plaintiff does not challenge the ALJ’s

7 findings as to the opinions of the state agency psychological consultants and Ms.

8 Smith. See McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997) (“[I]ssues

9 adverted to in a perfunctory manner, unaccompanied by some effort at developed

10 argumentation, are deemed waived. It is not sufficient for a party to mention a

11 possible argument in a most skeletal way, leaving the court to . . . put flesh on its

12 bones.”). Accordingly, the Court concludes the ALJ’s step two analysis as to

13 Plaintiff’s mental impairments was sufficient.

14 C. Other Challenges

15 Plaintiff raises several other challenges to the ALJ’s evaluation of the

16 psychological opinion evidence and Plaintiff’s symptom claims, as well as the

17 ALJ’s analysis at steps three, four, and five. ECF No. 14 at 22. The Court

18 declines to address these challenges here given the ALJ’s reversible error and need

19 to further develop the record.

20

1 D. Remedy

2 Plaintiff urges this Court to remand for an immediate award of benefits.

3 ECF No. 14 at 21. “The decision whether to remand a case for additional

4 evidence, or simply to award benefits is within the discretion of the court.”

5 Sprague, 812 F.2d at 1232 (citing Stone v. Heckler, 761 F.2d 530, 533 (9th Cir.

6 1985)). When the Court reverses an ALJ’s decision for error, the Court “ordinarily

7 must remand to the agency for further proceedings.” Leon v. Berryhill, 880 F.3d

8 1041, 1045 (9th Cir. 2017); Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir.

9 2004) (“[T]he proper course, except in rare circumstances, is to remand to the

10 agency for additional investigation or explanation”); Treichler v. Comm’r of Soc.

11 Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014). However, in a number of Social

12 Security cases, the Ninth Circuit has “stated or implied that it would be an abuse of

13 discretion for a district court not to remand for an award of benefits” when three

14 conditions are met. Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014)

15 (citations omitted). Under the credit-as-true rule, where (1) the record has been

16 fully developed and further administrative proceedings would serve no useful

17 purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting

18 evidence, whether claimant testimony or medical opinion; and (3) if the improperly

19 discredited evidence were credited as true, the ALJ would be required to find the

20 claimant disabled on remand, the Court will remand for an award of benefits.

1 Revels v. Berryhill, 874 F.3d 648, 668 (9th Cir. 2017). Even where the three

2 prongs have been satisfied, the Court will not remand for immediate payment of

3 benefits if “the record as a whole creates serious doubt that a claimant is, in fact,

4 disabled.” Garrison, 759 F.3d at 1021.

5 Here, further proceedings are necessary to allow the ALJ to develop the

6 record further regarding Dr. Heap’s treatment notes. The ALJ’s finding of

7 illegibility prevents the Court from determining whether the medical evidence was

8 properly evaluated at step two and subsequent steps of sequential evaluation. As

9 discussed supra, Dr. Heap opined that Plaintiff’s limitations would result in her

10 having to lie down during the day because of “fatigue, pain the arm, and

11 narcolepsy symptoms” and would result in her missing four or more days of work

12 a week because of “exacerbation of neuropathic symptoms due to repetitive

13 motion.” Tr. 884-85. These qualifications were neither offered by the examining

14 physicians, Dr. Gaddy (Tr. 804-08) and Dr. Ugorji (Tr. 820-26), nor the reviewing

15 physicians, Dr. Packer (Tr. 852) and Dr. Irwin (Tr. 93-95). Further proceedings

16 are necessary to properly evaluate the medical opinion evidence. Furthermore,

17 even if all three credit-as-true prongs were met, remand for further proceedings

18 would still be appropriate as the record creates doubt as to whether Plaintiff is, in

19 fact, disabled.

20

1 Accordingly, the Court remands this case for further proceedings consistent

2 with this Order. On remand, the ALJ is instructed to develop the record regarding

3 the legibility of Dr. Heap’s treatment notes, reconsider the medical evidence, and

4 conduct a supplemental hearing. The ALJ shall perform the five-step inquiry

5 anew.

6 CONCLUSION

7 Having reviewed the record and the ALJ’s findings, the Court concludes the

8 ALJ’s decision is not supported by substantial evidence and free of harmful legal

9 error. Accordingly, IT IS HEREBY ORDERED:

10 1. Plaintiff’s Motion for Summary Judgment, ECF No. 14, is GRANTED.

11 3. Defendant’s Motion for Summary Judgment, ECF No. 15, is DENIED.

12 4. The Clerk’s Office shall enter JUDGMENT in favor of Plaintiff

13 REVERSING and REMANDING the matter to the Commissioner of Social

14 Security for further proceedings consistent with this recommendation pursuant to

15 sentence four of 42 U.S.C. § 405(g).

16 The District Court Executive is directed to file this Order, provide copies to

17 counsel, and CLOSE THE FILE.

18 DATED August 20, 2020.

19 s/Mary K. Dimke

MARY K. DIMKE

20 UNITED STATES MAGISTRATE JUDGE