Mills v. Commissioner of Social Security

1

2

3

4 UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

5 AT TACOMA

6

KARA M.,

Case No. 3:21-05673-TLF

7 Plaintiff,

v. ORDER REVERSING AND

8 REMANDING DEFENDANT’S

COMMISSIONER OF SOCIAL DECISION TO DENY BENEFITS

9 SECURITY,

10 Defendant.

11

12 Plaintiff has brought this matter for judicial review of defendant’s denial of her

13 applications for disability insurance benefits (“DIB”) and supplemental security income

14 (“SSI”).

15 The parties have consented to have this matter heard by the undersigned

16 Magistrate Judge. 28 U.S.C. § 636(c); Federal Rule of Civil Procedure 73; Local Rule

17 MJR 13.

18 I. ISSUES FOR REVIEW

19 1. Did the ALJ properly evaluate the medical opinion evidence?

20 2. Did the ALJ properly evaluate Plaintiff’s subjective testimony?

21 II. BACKGROUND

22 On April 29, 2016, Plaintiff filed applications for DIB and SSI, alleging disability as

23 of January 1, 2016. See Administrative Record (“AR”) 247, 253. The applications were

24 denied upon initial administrative review and on reconsideration. See AR 68–69, 99–

1 100. A hearing was held before ALJ Mark Kim on April 9, 2019. See AR 34–67. In a

2 decision dated April 25, 2019, ALJ Kim determined Plaintiff to be not disabled. See AR

3 14–33. Plaintiff’s request for review of the ALJ’s decision was denied by the Appeals

4 Council, making the ALJ’s decision the final decision of the Commissioner. See AR 1;

5 20 C.F.R. §§ 404.981, 416.1481. Plaintiff filed a complaint in this Court seeking judicial

6 review of the Commissioner’s final decision, and on October 20, 2020, this Court

7 reversed and remanded ALJ Kim’s decision for further proceedings. AR 655–67.

8 A new hearing was held before ALJ Elizabeth Watson on April 13, 2021. AR

9 626–51. In a decision dated July 14, 2021, ALJ Watson found that Plaintiff only became

10 disabled within the meaning of Sections 216(i) and 223(d) of the Social Security Act as

11 of February 17, 2020. AR 601–25. The Appeals Council denied review, and Plaintiff filed

12 a second complaint in this Court on October 5, 2021, seeking judicial review of the

13 Commissioner’s final decision. Dkt. 7.

14 III. STANDARD OF REVIEW

15 Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s

16 denial of Social Security benefits if the ALJ’s findings are based on legal error or not

17 supported by substantial evidence in the record as a whole. Revels v. Berryhill, 874

18 F.3d 648, 654 (9th Cir. 2017). Substantial evidence is “such relevant evidence as a

19 reasonable mind might accept as adequate to support a conclusion.” Biestek v.

20 Berryhill, 139 S. Ct. 1148, 1154 (2019) (internal citations omitted).

21 IV. DISCUSSION

22 In this case, the ALJ found that Plaintiff had the severe, medically determinable

23 impairments of cervical degenerative disc disease, lumbar degenerative disc disease,

24 left hip trochanteric bursitis, bilateral carpal tunnel syndrome status post-releases,

1 obesity, adjustment disorder, attention deficit hyperactivity disorder (“ADHD”), and

2 generalized anxiety disorder. AR 607. Based on the limitations stemming from these

3 impairments, the ALJ found that Plaintiff could perform a reduced range of light work.

4 AR 609. Relying on vocational expert (“VE”) testimony, the ALJ found at step four that

5 Plaintiff could not perform her past relevant work, but could perform other light, unskilled

6 jobs at step five of the sequential evaluation; therefore, the ALJ determined at step five

7 that Plaintiff was not disabled prior to February 17, 2020. AR 615.

8 A. Whether the ALJ Properly Evaluated Medical Opinion Evidence

9 Plaintiff contends that the ALJ erred in evaluating the medical opinions of treating

10 physicians Michael K. Turner, M.D. and Bjorn Jacobson, M.D.; examining psychologists

11 Peter A. Weiss, Ph.D., N.K. Marks, Ph.D., and Cecilia Cooper, Ph.D., and reviewing

12 psychologists Melanie Mitchell, Psy.D. and Brian Van Fossen, Ph.D. Dkt. 17, pp. 2–15.

13 Plaintiff filed their applications prior to March 27, 2017, therefore under the

14 applicable regulations, an ALJ must provide “clear and convincing” reasons to reject the

15 uncontradicted opinions of an examining doctor, and “specific and legitimate” reasons to

16 reject the contradicted opinions of an examining doctor. See Lester v. Chater, 81 F.3d

17 821, 830-31 (9th Cir. 1995). When a treating or examining physician's opinion is

18 contradicted, the opinion can be rejected “for specific and legitimate reasons that are

19 supported by substantial evidence in the record.” Id. (citing Andrews v. Shalala, 53 F.3d

20 1035, 1043 (9th Cir. 1995); Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)).

21 An examining physician’s opinion is “entitled to greater weight than the opinion of

22 a non-examining physician.” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (citations

23 omitted); see also 20 C.F.R. § 404.1527(c)(1)(“Generally, we give more weight to the

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1 opinion of a source who has examined you than to the opinion of a source who has not

2 examined you”). A non-examining physician’s or psychologist’s opinion may not

3 constitute substantial evidence by itself sufficient to justify the rejection of an opinion by

4 an examining physician or psychologist. Lester, 81 F.3d at 831 (citations omitted).

5 However, “it may constitute substantial evidence when it is consistent with other

6 independent evidence in the record.” Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th

7 Cir. 2001) (citing Magallanes, supra, 881 F.2d at 752). “In order to discount the opinion

8 of an examining physician in favor of the opinion of a non-examining medical advisor,

9 the ALJ must set forth specific, legitimate reasons that are supported by substantial

10 evidence in the record.” Nguyen v. Chater, 100 F.3d 1462, 1466 (9th Cir. 1996) (citing

11 Lester, 81 F.3d at 831).

12 Acceptable medical sources include both licensed physicians and licensed

13 psychologists. Gomez v. Chater, 74 F.3d 967, 971 (9th Cir. 1996). The ALJ “may reject

14 the opinion of a non-examining physician by reference to specific evidence in the

15 medical record.” Sousa v. Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998) (citing

16 Gomez, 74 F.3d at 972); Andrews, 53 F.3d at 1041.

17 A. Opinion of Dr. Turner

18 Dr. Turner, Plaintiff’s treating physician of over two years, completed a

19 questionnaire regarding Plaintiff’s functional capacity on November 5, 2018. AR 518–

20 24. He noted Plaintiff’s diagnoses of lumbar spondylosis, lumbar radiculopathy, vascular

21 insufficiency, and chronic fatigue syndrome. AR 518. Dr. Turner opined that Plaintiff is

22 limited to sitting for five hours in an eight-hour workday and standing or walking for one

23 hour in an eight-hour workday. AR 521. In addition, he stated that Plaintiff would need to

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1 get up to move around every hour, for 10 minutes, before returning to sitting and could

2 not stand or walk continuously in a work setting, could not carry more than 10 pounds,

3 and could not kneel, bend, or stoop. AR 521–22, 524. Finally, Dr. Turner stated that

4 Plaintiff’s severe pain symptoms would frequently interfere with her attention and

5 concentration; she has a poor emotional and physical reserve; and she is likely to be

6 absent from work two to three times per month due to bad pain days. AR 522–23.

7 The ALJ gave this opinion little weight, reasoning that (1) the opinion was a

8 check-box form and unsupported by the doctor’s treatment notes; (2) the opined

9 limitations on Plaintiff’s attention, concentration, need for breaks, and absenteeism were

10 based on Plaintiff’s subjective complaints; and (3) the opinion was inconsistent with mild

11 to moderate indications from imaging, good range of motion on examination, hip

12 maneuvers not reproducing groin pain on examination, and improvement in her neck,

13 back and hip pain with physical therapy and injections. AR 614.

14 With respect to the ALJ’s first reason, an ALJ “may permissibly reject check-off

15 reports that do not contain any explanation of the bases of their conclusions.” Molina v.

16 Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (internal citations omitted). Yet even where

17 a treating physician’s opinion is brief and conclusory, an ALJ must consider its context

18 in the record—especially the physician’s treatment notes. See Burrell v. Colvin, 775

19 F.3d 1133, 1140 (9th Cir. 2014) (holding ALJ erred in finding treating opinion

20 “conclusory” and supported by “little explanation,” where ALJ “overlook[ed] nearly a

21 dozen [treatment] reports related to head, neck, and back pain”); Revels v. Berryhill,

22 874 F.3d 648, 663 (9th Cir. 2017) (ALJ erred in rejecting treating physician’s opinion as

23 supported by “little explanation,” where record included treatment notes supporting the

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1 opined limitations). Here, the ALJ did not address Dr. Turner’s treatment notes at all,

2 instead characterizing Dr. Turner’s opinion on Plaintiff’s limitations as a stand-alone

3 document, in spite of Dr. Turner having seen Plaintiff at least 13 times during the

4 relevant period. See AR 430–31, 456, 481, 484, 486–87, 495, 542, 550, 566, 590–91,

5 599. This was error.

6 With respect to the ALJ’s second reason, if a treating or examining source's

7 opinions are based “to a large extent” on an applicant's self-reports and not on clinical

8 evidence, and the ALJ finds the applicant not credible, the ALJ may discount the

9 source’s opinion. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir.2008); see also

10 Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). However, when an opinion is

11 not more heavily based on a patient's self-reports than on clinical observations, there is

12 no evidentiary basis for rejecting the opinion. See Ryan v. Commissioner of Social Sec.,

13 528 F.3d 1194, 1199–1200 (9th Cir. 2008).

14 Here, Dr. Turner’s treatment notes indicated that Plaintiff suffered from edema,

15 back spasms, and radiating pain, in addition to exhibiting antalgic gait, weakness, and

16 neuropathy. AR 481, 484, 486–87, 566, 590–91. The ALJ did not explain how these

17 findings clashed with Dr. Turner’s opinions regarding Plaintiff’s ability to pay attention or

18 work without breaks. Accordingly, the ALJ’s finding that Dr. Turner based his opinion on

19 Plaintiff’s subjective symptom reports was not a specific and legitimate reason

20 supported by substantial evidence for discounting that opinion.

21 With respect to the ALJ’s third reason, an ALJ need not accept the opinion of a

22 treating source “if that opinion is brief, conclusory, and inadequately supported by

23 clinical findings.” Batson v. Commissioner of Social Security Administration, 359 F.3d

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1 1190, 1195 (9th Cir. 2004). Here, the ALJ again pointed to mild to moderate indications

2 from imaging, good range of motion, hip maneuvers not reproducing groin pain on

3 examination, and improvement in Plaintiff’s condition with physical therapy and

4 injections. AR 614 (citing AR 377, 379, 433, 435, 481–82, 490, 495, 537, 599, 1036,

5 1079–80).

6 While X-ray and magnetic resonance imaging (“MRI”) scans showed only mild to

7 moderate degenerative changes, the other evidence upon which the ALJ relied is

8 neither substantial nor inconsistent with Dr. Turner’s findings. Plaintiff’s “good range of

9 motion” was noted only once in the context of Plaintiff appearing agitated. AR 379. In

10 addition, the notes upon which the ALJ relied to find Plaintiff’s improvement with

11 physical therapy indicated that this improvement was due to decreased physical activity.

12 AR 433, 435. Finally, in finding that Plaintiff’s groin pain was not reproduced by hip

13 maneuvers on examination, the ALJ ignored evidence that this activity could reproduce

14 groin pain, as occurred in an exam on December 20, 2016. See AR 481, 614.

15 The mild to moderate indications from imaging, alone, would not constitute

16 substantial evidence contradicting Dr. Turner’s opined limitations; because the other

17 medical evidence on which the ALJ relied was neither substantial nor inconsistent with

18 Dr. Turner’s opinion, this was not a specific and legitimate reason for discounting the

19 opinion. The ALJ’s failure to provide adequate rationale for rejecting the opinion was

20 error.

21 An error is harmless only if it is not prejudicial to the claimant or “inconsequential”

22 to the ALJ’s “ultimate nondisability determination.” Stout v. Comm’r Soc. Sec. Admin.,

23 454 F.3d 1050, 1055 (9th Cir. 2006).

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1 In this case, the ALJ’s error was not harmless. Had the ALJ properly considered

2 Dr. Turner’s opinion, the ALJ may have incorporated limitations from these opinions in

3 making a determination as to Claimant’s residual functional capacity. Had the ALJ

4 incorporated such limitations, in turn, the continuing disability determination may have

5 changed. Accordingly, the ALJ’s error was not harmless and requires reversal.

6 B. Opinion of Dr. Jacobson

7 Dr. Jacobson, Plaintiff’s treating physician from 2019 on, provided a medical

8 source opinion on March 24, 2021, wherein he diagnosed Plaintiff with chronic neck and

9 low back pain with degenerative disc disease throughout the spine. AR 983. In addition,

10 Dr. Jacobson stated that Plaintiff’s symptoms, including intermittent episodes of

11 debilitating pain and the inability to function, would cause her to miss four or more days

12 of regular, continuous work per month. According to Dr. Jacobson, Plaintiff would be

13 limited to the level sedentary work or less and she would be off task and unproductive

14 over 30% of a 40-hour work week. AR 984.

15 In giving little weight to this opinion, the ALJ reasoned that it was (1) produced

16 after the period in issue; (2) inconsistent with imaging and examination results; and (3)

17 inconsistent with Plaintiff’s activities of daily living. AR 614.

18 With respect to the ALJ’s first reason, “[i]t is obvious that medical reports are

19 inevitably rendered retrospectively and should not be disregarded solely on that basis.”

20 Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988). But an ALJ may reject a medical

21 opinion, even that of a treating physician, that “d[oes] not relate plaintiff's current

22 symptoms back to the relevant time period.” Morgan v. Colvin, No. 12-01235, 2013 WL

23 6074119, at *10 (D. Or. Nov. 13, 2013); see also Shuff v. Berryhill, No. 16-05579, 2017

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1 WL 4224423, at *3 (W.D. Wash. Sept. 22, 2017) (holding that ALJ properly discounted

2 opinion postdating date last insured by two years which described claimant's symptoms

3 “at this point” and explaining that “post-DLI opinions may be properly discounted where

4 they do not have retrospective applicability”).

5 Here, Dr. Jacobson stated that the limitations he assessed had existed since at

6 least September 2019, when he began treating Plaintiff. AR 985. Dr. Jacobson also

7 referred Plaintiff to a physical therapist, reviewed chart notes, and approved successive

8 plans of care during the period between September 2019 and the established onset

9 date of February 17, 2020. See, e.g., AR 1567, 1573, 1579. The ALJ did not point to

10 any evidence, aside from the date on which Dr. Jacobson’s opinion was rendered, that

11 would undermine Dr. Jacobson’s statement regarding the duration of Plaintiff’s

12 limitations. This was not a specific and legitimate reason for discounting the statement.

13 See Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988).

14 With respect to the ALJ’s second reason, an ALJ need not accept the opinion of

15 a treating source “if that opinion is brief, conclusory, and inadequately supported by

16 clinical findings.” Batson v. Commissioner of Social Security Administration, 359 F.3d

17 1190, 1195 (9th Cir. 2004). Here, the ALJ again pointed to mild to moderate indications

18 from imaging, good range of motion, hip maneuvers not reproducing groin pain on

19 examination, and improvement in Plaintiff’s condition with physical therapy and

20 injections. AR 614 (citing AR 377, 379, 433, 435, 481–82, 490, 495, 537, 599, 1036,

21 1079–80). As discussed above with respect to Dr. Turner’s opinion, the evidence upon

22 which the ALJ relied to make this finding was neither substantial nor inconsistent with

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1 the opined limitations; thus, it was not a specific and legitimate reason for discounting

2 the opinion.

3 With respect to the ALJ’s third reason, inconsistency with a claimant’s activities

4 may serve as a proper basis for rejecting a medical source’s opinion. Rollins v. Massanari,

5 261 F.3d 853, 856 (9th Cir. 2001). Yet disability claimants should not be penalized for

6 attempting to lead normal lives in the face of their limitations. See Reddick v. Chater, 157

7 F.3d 715, 722 (9th Cir. 1998) (citing Cooper v. Bowen, 815 F.2d 557, 561 (9th Cir. 1987)

8 (claimant need not “vegetate in a dark room” in order to be deemed eligible for benefits)).

Here, the ALJ discounted Dr. Jacobson’s opinion as inconsistent with Plaintiff’s activities of

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helping watch her sister’s young children, performing self-care, driving, cooking, cleaning,

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shopping, using public transportation, sewing, crafting, and doing yard work. AR 614 (citing

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AR 377, 399, 415, 433, 442, 509). The ALJ failed to explain how any of these activities

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conflicted with Dr. Jacobson’s opinion. There is no indication that any of these activities

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require, for example, lifting and carrying more than 10 pounds at a time, or that Plaintiff

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performed any of these activities at a level comparable to that of full-time work. See AR

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984. The ALJ cited Plaintiff’s ability to push a lawnmower, but there is no indication that it

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required greater ability than opined by Dr. Jacobson, and it also caused increased pain. AR

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442. Substantial evidence does not support the finding that Dr. Jacobson’s opinion is

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contradicted by Plaintiff’s activities.

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C. Opinion of Dr. Weiss

20

On March 16, 2020, Dr. Weiss completed an evaluation of Plaintiff, including a

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clinical interview and mental status examination, and diagnosed her with panic disorder

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and moderate recurrent major depressive disorder. AR 831–34. Based on these

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impairments, he opined that Plaintiff would be severely limited in her ability to perform

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1 activities within a schedule, to maintain regular attendance, to be punctual within

2 customary tolerances without special supervision; and to complete a normal workday

3 and work week without interruptions from psychologically based symptoms. AR 832–33.

4 The ALJ did not address this opinion in her decision. The ALJ “need not discuss all

5 evidence presented.” Vincent ex rel. Vincent v. Heckler, 739 F.3d 1393, 1394–1395 (9th

6 Cir. 1984). However, the ALJ “may not reject ‘significant probative evidence’ without

7 explanation.” Flores v. Shalala, 49 F.3d 562, 570–571 (9th Cir. 1995) (quoting Vincent,

8 739 F.2d at 1395). The “ALJ’s written decision must state reasons for disregarding

9 [such] evidence.” Flores, 49 F.3d at 571.

10 Here, the Commissioner asserts that any error in omitting discussion of Dr.

11 Weiss’s opinion was harmless because, like Dr. Jacobson’s opinion, it was produced

12 after the established onset date. Dkt. 18, p. 14. If the ALJ ignores a medical opinion, the

13 omission is reviewed for harmless error. Marsh v. Colvin, 792 F.3d 1170, 1172–73 (9th

14 Cir. 2015). First, the ALJ did not provide this as a reason for discounting the opinion.

15 “Long-standing principles of administrative law require us to review the ALJ's decision

16 based on the reasoning and factual findings offered by the ALJ—not post hoc

17 rationalizations that attempt to intuit what the adjudicator may have been thinking.” Bray

18 v. Commissioner of Social Security Admin., 554 F.3d 1219, 1225 (9th Cir. 2009) (citing

19 SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S. Ct. 1575, 91 L. Ed. 1995 (1947)).

20 Second, as with Dr. Jacobson’s opinion, Dr. Weiss’s opinion indicated that Plaintiff’s

21 mental health symptoms had begun in 2017, several years before the established onset

22 date of February 17, 2020; thus, as with Dr. Jacobson’s opinion, Dr. Weiss’s opinion

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1 could not be rejected merely by virtue of being produced after that date. See Smith v.

2 Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988).

3 D. Opinion of Dr. Marks

4 On July 15, 2016, psychologist Dr. Marks evaluated Plaintiff, diagnosing her

5 with ADHD, anxiety disorder, and depressive disorder. See AR 397–402. Dr. Marks

6 assessed marked limitations in Plaintiff’s ability to perform activities within a

7 schedule, maintain regular attendance, and be punctual within customary tolerances

8 without special supervision; learn new tasks; adapt to changes in a routine work setting;

9 and communicate and perform effectively in a work setting. AR 400. In another

10 evaluation dated July 23, 2018, Dr. Marks again evaluated Plaintiff, this time assessing

11 additional marked limitations in her ability to adapt to make simple work-related

12 decisions, ask simple questions or request assistance, maintain appropriate behavior in

13 a work setting, complete a normal workday and work week without interruptions, and set

14 realistic goals or plan independently. AR 510.

15 The ALJ gave little weight to Dr. Marks’s opinions, reasoning that they were (1)

16 cursory evaluations conducted in a secondary gain context; and (2) inconsistent with

17 another consultative examination in which Plaintiff’s presentation and performance were

18 far better. AR 613 (citing AR 413–17).

19 With respect to the ALJ’s first reason, Dr. Marks’s 2016 and 2018 evaluations

20 each included a clinical interview, mental status examination, and review of Plaintiff’s

21 records, and the 2018 evaluation included an administration of the Beck Anxiety and

22 Beck Depression Inventories. AR 397–401, 507–13. Thus, a finding that both

23 evaluations were “cursory” is unsupported by substantial evidence.

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1 In addition, “‘[t]he purpose for which medical reports are obtained does not

2 provide a legitimate basis for rejecting them’ unless there is additional evidence

3 demonstrating impropriety.” Case v. Astrue, 425 F. Appx. 565, 566 (9th Cir. 2011)

4 (quoting Lester, 81 F. 3d at 832).

5 With respect to the ALJ’s second reason, in the prior decision reversing and

6 remanding the ALJ, this Court held that inconsistency between examinations during

7 2016 was a specific and legitimate reason for rejecting Dr. Marks’s 2016 opinion, but

8 not for rejecting Dr. Marks’s 2018 opinion. See AR 664. The law of the case doctrine

9 generally prohibits a court from considering an issue that has already been decided by

10 that same court or a higher court in the same case. Stacy v. Colvin, 825 F.3d 563, 567

11 (9th Cir. 2016) (citing Merritt v. Mackey, 932 F.2d 1317, 1320 (9th Cir. 1991)). The law

12 of the case doctrine “is concerned primarily with efficiency, and should not be applied

13 when the evidence on remand is substantially different, when the controlling law has

14 changed, or when applying the doctrine would be unjust.” Id. Here, the Commissioner

15 has not shown that any of these exceptions should apply. Thus, no specific and

16 legitimate reasons supported the ALJ’s ultimate finding regarding this opinion.

17 E. Opinion of Dr. Cooper

18 Dr. Cooper evaluated Plaintiff on November 2, 2016, including a mental status

19 examination, clinical interview, and trail making tests, and diagnosed Plaintiff with

20 delayed-onset adjustment disorder with anxiety and specified personality disorder with

21 schizotypal and obsessive-compulsive traits. AR 418. Dr. Cooper also opined that

22 Plaintiff would have problems with concentration over extended periods of time, would

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1 require accommodations for breaks, and would have strained relationships with some

2 supervisors. AR 418.

3 The ALJ gave this opinion partial weight, reasoning that while it was “largely

4 supported by this source’s own exam findings,” several limitations on interaction were

5 inconsistent with Plaintiff’s presentation in other mental status exams, suggesting

6 possible symptom exaggeration. AR 613–14.

7 In the prior order reversing and remanding the ALJ, this Court held that

8 Dr. Cooper’s findings included “intense and boisterous” attitude and

behavior, “tearful” mood and affect, and “staccato” speech. [AR] 413. The

9 ALJ did not explain how these findings were inconsistent with Dr. Cooper’s

opinion of “strained relationships with some supervisors” and being “more

10 comfortable . . . without much interaction.” [AR] 418. The ALJ also did not

explain how the record as a whole was inconsistent with Dr. Cooper’s

11 opinions.

12 AR 664. On remand, the ALJ made references to specific instances in the record that

13 were allegedly inconsistent with Dr. Cooper’s opinion, such as “notations of [Plaintiff]

14 presenting as friendly and good natured[,]” being “in contact” with her family, and

15 “having a social support system” of two people. AR 613.

16 Plainly, this is not inconsistent with Dr. Cooper’s opinion that Plaintiff would have

17 issues with supervisors and extended interaction in a work setting. The Social Security

18 Administration's regulation concerning evidence of functioning in supportive situations is

19 instructive here: “Your ability to complete tasks in settings that are highly structured, or

20 that are less demanding or more supportive than typical work settings does not

21 necessarily demonstrate your ability to complete tasks in the context of regular

22 employment during a normal workday or work week.” 20 C.F.R. 404, Subpart P, App'x

23 1, § 12.00(C)(6)(b) (2016). Interactions with treatment providers are not analogous

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1 interactions with coworkers, supervisors, or the general public in a work setting. Id. And

2 they do not demonstrate an inconsistency with Dr. Cooper’s opinion.

3 The ALJ also found that Plaintiff claimed to suffer “auditory and visual

4 hallucinations” during the examination, and that because such claims appeared

5 nowhere else in the record, this “suggests possible symptom exaggeration.” AR 613–

6 14. As this Court previously held,

7 Even if the incidents did not occur as Plaintiff reported, it is unclear how

they affected Dr. Cooper’s opinions on social interaction. The

8 Commissioner does not defend the ALJ’s reason, apparently conceding it

is erroneous.

9

AR 664. In the present appeal, the Commissioner has, again, not defended this reason,

10

and has not offered any reason why the prior holding of this Court should be disturbed.

11

Thus, the Court again applies law of the case, under Stacy v. Colvin, 825 F.3d 563, 567

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(9th Cir. 2016), and holds that this was not a specific and legitimate reason to discount

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Dr. Cooper’s opinion.

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F. Opinions of Drs. Mitchell and Van Fossen

15

On July 25, 2016, state agency psychologist Dr. Mitchell concurred with Dr.

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Marks’ 2016 findings, establishing an onset date of disability of June 7, 2016. AR 403–

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08. On September 5, 2018, agency psychologist Dr. Van Fossen authored an opinion

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that indicated the same disability onset date. AR 514–17.

19

In giving little weight to the opinions of Drs. Mitchell and Van Fossen, the ALJ

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relied on the same reasoning as that which was used to discount the opinions of Drs.

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Cooper and Marks. AR 614. The Court has already determined that the ALJ’s reasoning

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in discounting those opinions was improper. Thus, the rejection of Drs. Mitchell and Van

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Fossen was harmful error.

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1 2. Did the ALJ Properly Evaluate Plaintiff’s Testimony?

2 Next, Plaintiff assigns error to the ALJ’s evaluation of her subjective symptom

3 testimony. Dkt. 17, pp. 15–18.

4 To reject a claimant’s subjective complaints, the ALJ’s decision must provide

5 “specific, cogent reasons for the disbelief.” Lester, 81 F.3d at 834 (citation omitted).

6 The ALJ “must identify what testimony is not credible and what evidence undermines

7 the claimant’s complaints.” Id.; Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993).

8 Unless affirmative evidence shows the claimant is malingering, the ALJ’s reasons for

9 rejecting the claimant’s testimony must be “clear and convincing.” Lester, 81 F.2d at

10 834. “[B]ecause subjective descriptions may indicate more severe limitations or

11 restrictions than can be shown by medical evidence alone,” the ALJ may not discredit a

12 subjective description “solely because it is not substantiated affirmatively by objective

13 medical evidence.” Robbins v. Social Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006).

14 In the prior appeal to this Court, Plaintiff also alleged error in the evaluation of her

15 subjective symptom testimony. This Court held that the ALJ did not err in rejecting

16 Plaintiff’s testimony based on her activities of daily living and performance on

17 trailmaking tests:

18 Plaintiff testified she can only sit for five minutes at a time, but can

drive for 30 minutes. [AR] 47, 52. She testified she can only stand for five

19 minutes at a time, but reported mowing her lawn with a push mower. [AR]

47, 442. Plaintiff testified she can only use her hands, such as for sewing,

20 for five minutes at a time. [AR] 57–58. Yet in July 2016 Plaintiff reported

she “does a lot of hand crafts at home.” [AR] 399. In November 2016

21 Plaintiff reported sitting 45 to 60 minutes sewing. [AR] 442. Plaintiff argues

her condition worsened, but in July 2018 she again reported doing “a lot of

22 hand crafts.” [AR] 509. Inconsistent statements and conflict with her

activities were clear and convincing reasons to discount Plaintiff’s physical

23 symptom testimony.

24

1 The ALJ permissibly discounted Plaintiff’s testimony of poor

concentration based on testing showing she was “not impaired.” [AR] 24,

2 55–56, 416. The ALJ permissibly discounted testimony of difficulty

interacting with people because Plaintiff shops in stores and uses public

3 transportation. [AR] 24, 51, 399, 415. The Court accordingly concludes the

ALJ did not err by discounting Plaintiff’s testimony.

4

AR 665–66. The law of the case applies to the ALJ’s evaluation of Plaintiff’s testimony.

5

While the law of the case should not be applied when the evidence on remand is

6

substantially different, when the controlling law has changed, or when applying the

7

doctrine would be unjust, Stacy v. Colvin, 825 F.3d 563, 567 (9th Cir. 2016), it does not

8

appear that any exception would apply. The evidence adduced at Plaintiff’s second

9

hearing was not substantially different but was consistent with the testimony at her first

10

hearing, including indicating numbness, hand and wrist pain, an inability to sit or stand

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for long periods, and the need to elevate her legs multiple times a day due to swelling.

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See AR 47–54 (first hearing), AR 633–37 (second hearing). The ALJ did not err in

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relying on inconsistencies within Plaintiff’s statements to discount her subjective

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testimony.

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Remand for Award of Benefits

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“‘The decision whether to remand a case for additional evidence, or simply to

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award benefits[,] is within the discretion of the court.’” Trevizo v. Berryhill, 871 F.3d 664,

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682 (9th Cir. 2017) (quoting Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987)). If

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an ALJ makes an error and the record is uncertain and ambiguous, the court should

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remand to the agency for further proceedings. Leon v. Berryhill, 880 F.3d 1041, 1045

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(9th Cir. 2017). Likewise, if the court concludes that additional proceedings can remedy

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the ALJ’s errors, it should remand the case for further consideration. Revels, 874 F.3d

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at 668.

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1 The Ninth Circuit has developed a three-step analysis for determining when to

2 remand for a direct award of benefits. Such remand is generally proper only where

3 “(1) the record has been fully developed and further administrative

proceedings would serve no useful purpose; (2) the ALJ has failed to

4 provide legally sufficient reasons for rejecting evidence, whether claimant

testimony or medical opinion; and (3) if the improperly discredited

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

claimant disabled on remand.”

6

Trevizo, 871 F.3d at 682-83 (quoting Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir.

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2014)).

8

The Ninth Circuit emphasized in Leon that even when each element is satisfied,

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the district court still has discretion to remand for further proceedings or for award of

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benefits. 80 F.3d at 1045.

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Here, Plaintiff asks the Court to remand for an award of benefits based on the

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ALJ’s errors in evaluating the medical opinion evidence and Plaintiff’s subjective

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testimony. While Plaintiff has not shown that the ALJ erred in evaluating her own

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testimony, the Court has found several errors in the ALJ’s evaluation of the medical

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opinion evidence, several of which repeated errors of the prior ALJ in the

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Commissioner’s previous decision.

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Providing another opportunity to assess improperly evaluated evidence does not

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qualify as a remand for a “useful purpose” under the first part of the credit as true

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analysis. Garrison, 759 F.3d at 1021-22, citing Benecke v. Barnhart, 379 F.3d 587, 595

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(9th Cir. 2004) (“Allowing the Commissioner to decide the issue again would create an

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unfair ‘heads we win; tails, let’s play again’ system of disability benefits adjudication.”).

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If the opinions of Drs. Turner, Jacobson, Weiss, Marks, and Cooper were

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credited as true, particularly Dr. Jacobson’s opinion that Plaintiff would miss four or

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1 more days of work per month, the ALJ would be required to find Plaintiff disabled on

2 remand. AR 613–14, 984; see Lingenfelter v. Astrue, 504 F.3d 1028, 1041 (9th Cir.

3 2007) (“[W]e will not remand for further proceedings where, taking the claimant's

4 testimony as true, the ALJ would clearly be required to award benefits.”).

5 Accordingly, remand for an award of benefits is the appropriate remedy.

6 CONCLUSION

7 Based on the foregoing discussion, the Court finds the ALJ erred when she

8 determined plaintiff to be not disabled. Defendant’s decision to deny benefits therefore

9 is REVERSED and this matter is REMANDED for an award of benefits.

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12 Dated this 9th day of June, 2022.

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15 A

Theresa L. Fricke

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United States Magistrate Judge

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