Opinion
3:20-cv-01222-SB
03-03-2022
ALICIA D., [1] Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, [2] Defendant.
FINDINGS AND RECOMMENDATION
STACIE F. BECKERMAN, UNITED STATES MAGISTRATE JUDGE
Alicia D. (“Plaintiff”) brings this appeal challenging the Commissioner of the Social Security Administration's (“Commissioner”) denial of her application for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act. The Court has jurisdiction to hear Plaintiff's appeal pursuant to 42 U.S.C. § 405(g). For the reasons explained below, the Court recommends that the district judge reverse the Commissioner's decision because it is based on harmful legal error and not supported by substantial evidence in the record.
STANDARD OF REVIEW
The district court may set aside a denial of benefits only if the Commissioner's findings are “‘not supported by substantial evidence or based on legal error.'” Bray v. Comm'r of Soc. Sec. Admin., 554F.3d 1219, 1222 (9th Cir. 2009) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). Substantial evidence is defined as “‘more than a mere scintilla [of evidence] but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Id. (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)).
The district court “cannot affirm the Commissioner's decision ‘simply by isolating a specific quantum of supporting evidence.'” Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001) (quoting Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)). Instead, the district court must consider the entire record, weighing the evidence that both supports and detracts from the Commissioner's conclusions. Id. Where the record as a whole can support either the grant or denial of Social Security benefits, the district court “may not substitute [its] judgment for the [Commissioner's].” Bray, 554 F.3dat 1222 (quoting Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007)).
BACKGROUND
I. PLAINTIFF'S APPLICATION
Plaintiff was born in July 1974, making her forty-three years old on September 28, 2017, her alleged disability onset date. (Tr. 26, 63, 79.) Plaintiff earned a master's degree in education “curriculum and instruction” from Portland State University in August 2017, and has past work experience as a childcare leader, claims clerk, and elementary and secondary school teacher. (Tr. 26, 38-39, 1295.) In her application, Plaintiff alleged disability due to depression, anxiety, posttraumatic stress disorder (“PTSD”), “[a]ssociative disorder, ” and nasal issues. (Tr. 63-64, 80.)
To be eligible for DIB, “a worker must have earned a sufficient number of [quarters of coverage] within a rolling forty quarter period.” Herbert v. Astrue, No. 07-cv-01016, 2008 WL 4490024, at *4 n.3 (E.D. Cal. Sept. 30, 2008). Workers accumulate quarters of coverage based on their earnings. Id. Typically, “the claimant must have a minimum of twenty quarters of coverage [during the rolling forty quarter period to maintain insured status]. . . . The termination of a claimant's insured status is frequently referred to as the ‘date last insured' or ‘DLI.'” Id. (citations omitted). Thus, Plaintiff's date last insured of December 31, 2019 (see Tr. 13; but cf. Tr. 62, 78, 84, 86, 126, 133, 184, 221, 253, 262, listing December 31, 2018 as the DLI) reflects the date on which her insured status terminated based on the prior accumulation of quarters of coverage. If Plaintiff established that she was disabled on or before December 31, 2019, she is entitled to DIB. See Truelsen v. Comm'r Soc. Sec., No. 2:15-cv-02386, 2016 WL 4494471, at *1 n.4 (E.D. Cal. Aug. 26, 2016) (“To be entitled to DIB, plaintiff must establish that he was disabled . . . on or before his date last insured.” (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999))).
The Commissioner denied Plaintiff's application initially and upon reconsideration, and on June 29, 2018, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). (Tr. 13.) Plaintiff and a vocational expert (“VE”) appeared and testified at an administrative hearing held on July 18, 2019. (Tr. 35-61.) On September 23, 2019, the ALJ issued a written decision denying Plaintiff's application. (Tr. 13-28.) On June 3, 2020, the Appeals Council denied Plaintiff's request for review, making the ALJ's written decision the final decision of the Commissioner. (Tr. 1-6.) Plaintiff now seeks judicial review of the ALJ's decision.
II.THE SEQUENTIAL PROCESS
A claimant is considered disabled if he or she is unable to “engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months[.]” 42 U.S.C. § 423(d)(1)(A). “Social Security Regulations set out a five-step sequential process for determining whether an applicant is disabled within the meaning of the Social Security Act.” Keyser v. Comm'r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011). Those five steps are: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the impairment meets or equals a listed impairment; (4) whether the claimant can return to any past relevant work; and (5) whether the claimant can perform other work that exists in significant numbers in the national economy. Id. at 724-25.
The claimant bears the burden of proof for the first four steps. Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001). If the claimant fails to meet the burden at any of those steps, the claimant is not disabled. Id. at 954. The Commissioner bears the burden of proof at step five of the analysis, where the Commissioner must show the claimant can perform other work that exists in significant numbers in the national economy, “taking into consideration the claimant's residual functional capacity, age, education, and work experience.” Tackett, 180 F.3d at 1100. If the Commissioner fails to meet this burden, the claimant is disabled. Bustamante, 262 F.3d at 954.
III.THE ALJ'S DECISION
The ALJ applied the five-step sequential evaluation process to determine if Plaintiff is disabled. (Tr. 13-28.) At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since September 28, 2017, her alleged onset date. (Tr. 15.) At step two, the ALJ determined that Plaintiff suffered from the following severe impairments: “Bipolar disorder; post-traumatic stress disorder (PTSD); and somatic symptom disorder[.]” (Id.) At step three, the ALJ concluded that Plaintiff did not have an impairment that meets or medically equals a listed impairment. (Tr. 16.) The ALJ then concluded that Plaintiff had the residual functional capacity (“RFC”) to perform “a full range of work, ” subject to these limitations: (1) Plaintiff can perform only “simple, routine tasks with short, simple instructions, ” and (2) Plaintiff can “have occasional, superficial public contact, but no teamwork with coworkers.” (Tr. 18.) At step four, the ALJ concluded that Plaintiff was unable to perform her past relevant work as a childcare leader, claims clerk, and teacher. (Tr. 26.) At step five, the ALJ determined that Plaintiff was not disabled because a significant number of jobs existed in the national economy that she could perform, including work as a cleaner, bench assembler, and garment sorter. (Tr. 27.)
DISCUSSION
In this appeal, Plaintiff argues that the ALJ erred by (1) failing to provide clear and convincing reasons for discounting Plaintiff's symptom testimony; and (2) failing to provide legally sufficient reasons for discounting the opinions of Plaintiff's examining psychologists, Scott Alvord, Psy.D. (“Dr. Alvord”) and Patrick Bartos, Psy.D. (“Dr. Bartos”). (Pl.'s Opening Br. at 5-16.) As explained below, the Court concludes that the Commissioner's decision is based on harmful legal error and not supported by substantial evidence in the record. Accordingly, the Court recommends that the district judge reverse the Commissioner's denial of Plaintiff's DIB application.
I. PLAINTIFF'S SYMPTOM TESTIMONY
A. Applicable Law
The Ninth Circuit has “established a two-step analysis for determining the extent to which a claimant's symptom testimony must be credited[.]” Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). “First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment ‘which could reasonably be expected to produce the pain or other symptoms alleged.'” Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014) (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007)). Second, “‘[i]f the claimant meets the first test and there is no evidence of malingering, the ALJ can only reject the claimant's testimony about the severity of the symptoms if she gives specific, clear and convincing reasons for the rejection.'” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citation omitted).
Clear and convincing reasons for rejecting a claimant's testimony “include conflicting medical evidence, effective medical treatment, medical noncompliance, inconsistencies in the claimant's testimony or between her testimony and her conduct, daily activities inconsistent with the alleged symptoms, and testimony from physicians and third parties about the nature, severity and effect of the symptoms complained of.” Bowers v. Astrue, No. 11-cv-583-SI, 2012 WL 2401642, at *9 (D. Or. June 25, 2012) (citing Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008), Lingenfelter, 504 F.3d at 1040, and Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997)).
B. Analysis
There is no evidence of malingering here and the ALJ determined that Plaintiff provided objective medical evidence of underlying impairments which might reasonably produce the symptoms alleged. (See Tr. 20, the ALJ determined that Plaintiff's “medically determinable impairments could reasonably be expected to cause some of the alleged symptoms”). The ALJ was therefore required to provide clear and convincing reasons for discounting Plaintiff's symptom testimony. See Ghanim, 763 F.3d at 1163. The Court finds that the ALJ failed to meet that standard here.
1. Lack of Mental Health Treatment
The Commissioner argues that the ALJ appropriately discounted Plaintiff's testimony based on a lack of mental health treatment. (Def.'s Br. at 3, citing Tr. 20, 26.) The Court disagrees.
An ALJ may discount a claimant's symptom “testimony because of an ‘unexplained or inadequately explained failure to seek treatment' that suggests [her] symptoms are not as severe as alleged[.]” Malkin v. Saul, 818 Fed.Appx. 738, 740 (9th Cir. 2020) (quoting Tommasetti, 533 F.3d at 1039). The Ninth Circuit, however, has advised that they “‘do not punish the mentally ill' for their failure to seek treatment ‘when the record affords compelling reason to view such departure[] . . . as part of [a claimant's] underlying mental afflictions.'” Id. (quoting Garrison, 759 F.3d at 1018 n.24). For example, in Malkin, the record “provide[d] a reason to think that [the claimant's] departure from [her treating provider's] recommendation was attributable to [the claimant's] anxiety-which made her afraid of taking new medications, being in unfamiliar places, and driving on freeways.” Id. Thus, the Ninth Circuit concluded that in discounting the claimant's testimony, the ALJ erred in relying on the claimant's failure to seek psychiatric treatment. Id.
By contrast, in Niemi v. Saul, 829 Fed.Appx. 831, 832 (9th Cir. 2020), although the Ninth Circuit recognized that “it is a questionable practice to chastise one with a mental impairment for the exercise of poor judgment in seeking rehabilitation, ” it nevertheless held that the ALJ did not err in discounting the claimant's testimony based on a lack of mental health treatment. Id. (quoting Garrison, 759 F.3d at 1018 n.24). The Ninth Circuit did so because there was “no evidence in the record that [the claimant's] decision not to seek treatment for years was at least in part a result of her psychiatric issues.” Id. (simplified); see also Gillen-Townsley v. Kijakazi, No. 20-35286, 2021 WL 5792839, at *2 (9th Cir. Dec. 7, 2021) (affirming the ALJ's decision to discount the claimant's testimony and noting that the ALJ relied, in part, on the claimant's “lack of significant prior mental health treatment”).
Here, after noting generically that Plaintiff's statements about “the intensity, persistence and limiting effects of [her] symptoms are not entirely consistent with the medical evidence and other evidence in the record, ” the ALJ stated that aside from meetings with a social worker from the Department of Veterans Affairs (“VA”), there was “almost no mental health treatment evidence of record from the relevant period[.]”[ (Tr. 20; see also Tr. 24, 26, the ALJ addressed opinion evidence and the RFC and stated that there was a “lack of any significant mental health treatment during the relevant period, ” Plaintiff “received essentially no other mental health treatment during the relevant period, ” there was an “absence of significant mental health treatment during the relevant period, ” and Plaintiff “received no significant mental health treatment during the relevant period”). The ALJ, however, failed to address or consider whether any gaps in Plaintiff's mental health treatment were at least in part a result of her psychiatric issues.
The relevant period is September 28, 2017 (the alleged onset date) to December 31, 2019 (the DLI). (See Tr. 13; but cf. Tr. 62, 78, 84, 86, 126, 133, 184, listing December 31, 2018 as the DLI).
The ALJ's omission was significant because Plaintiff is “a Veteran of the Gulf War Era” who served in the Navy and has a 100 percent service-connected disability rating for PTSD. (Tr. 309, 311.) Her PTSD symptoms have been “magnified over the years” and attributed to being a survivor of rape/military sexual trauma (“MST”), sexual abuse, and domestic violence; abusive personal and professional relationships with men and male authority figures; exposure to trauma overseas; and childhood abuse and neglect. (See Tr. 302, 375, 406, 451, 478, 499, 501, 671, 708, 727, reporting childhood “abuse and neglect, ” a commanding officer who degraded Plaintiff and called Plaintiff names in front of her peers, and an incident of rape/military sexual trauma involving “a date rape drug” during a trip off base with other service members; Tr. 322, 398, 1316, noting that when Plaintiff was working in Conkary, Guinea, there was a “civil disturbance/massacre” and she was “exposed to civil unrest, violence[, ] 150 deaths and 1400 wounded with ‘widespread violence and rape'” near her home, which caused her to be “afraid of being raped” again; Tr. 337, 375-76, describing “recent domestic violence” on September 18, 2017, and “endors[ing] a history of significant domestic violence from her previous husband involving physical, sexual, and emotional abuse and an incident in which ‘he tried to burn down the apartment'”; Tr. 1295, reporting “a pattern of behavior where [Plaintiff] gets into relationships with abusive men who are manipulative, ” and reconnecting with an ex-boyfriend during the relevant period who “can still be abusive”).
Plaintiff has engaged in mental health treatment and taken medication in the past, and continues to work with female VA social workers. (See Tr. 376, 499-501, 1213, 1295, Plaintiff works with “women social workers who she feels comfortable with, ” previously pursued mental health treatment at Kaiser and her university's “counseling center” and with a female counselor, and took medication that was “inefficacious” and “exacerbated” her symptoms, which a psychologist found “not surprising”). The record, however, contains substantial evidence establishing that Plaintiff's PTSD has impacted her ability to work with men and male providers, engage in treatment, and pursue VA treatment. (See Tr. 51, 239, male authority figures are a significant “trigger” for Plaintiff; Tr. 374, 376, Plaintiff was “scared to pursue treatment” and “afraid” to return; Tr. 375, Plaintiff provided examples as to why VA medical care is triggering, such as “old m[e]n who say ‘honey you're too cute to have been in the Navy, '” which a male psychologist found “consistent with numerous other individuals [he had] evaluated . . ., especially women, who have been sexually traumatized by the military [and] are unable to present for VA care given emotional triggers associated with that environment”; Tr. 428, Plaintiff asked for mental health “support” but skipped an appointment because the VA is “triggering”; Tr. 460, Plaintiff's “relationships with m[e]n can be difficult ‘in terms of hierarchy,' feeling that she was shamed by her experiences in the military”; Tr. 462, Plaintiff was interested in “receiving ongoing therapy outside” of the VA; Tr. 524, Plaintiff was interested in counseling but did “not feel comfortable coming to the VA [due to] triggers associated with MST” and was “not engaging in treatment [due to] symptoms associated with MST”; Tr. 1295, Plaintiff is “particularly mistrustful of men, ” feels “uncomfortable with male providers and VA services, ” has “not been able to work with men, ” “gets triggered by men in public, ” and experienced “many triggers with her male boss” before being fired from her most recent job due in part to “bonding issues”; Tr. 1298, a male psychologist noted that Plaintiff asked to “see a woman, ” Plaintiff was “uncomfortable working with a [male provider] in an office with two doors, ” and the emotional lability Plaintiff exhibited in two exams with male psychologists was “understood as a symptom of trauma and is considered to be a situationally-induced state (i.e., when she is being evaluated by a man [versus] a woman, or if she is experiencing increased stress)”).
Given the Ninth Circuit authority and record evidence discussed above, the ALJ erred in discounting Plaintiff's testimony based on a lack of mental health treatment during the period at issue, because it is clear that Plaintiff's failure diligently to pursue treatment was at least in part a result of her psychiatric issues. See Schiaffino v. Saul, 799 Fed.Appx. 473, 476 n.1 (9th Cir. 2020) (explaining that the Ninth Circuit's “observation that a mental health impairment may impact a claimant's judgment regarding their own treatment is . . . applicable to PTSD, OCD, and anxiety”).
2.Plaintiff's Reported Activities
The Commissioner argues that the ALJ appropriately discounted Plaintiff's testimony based on her “wide ranging activities.” (Def.'s Br. at 2, citing Tr. 19, 26.) As explained below, the Court disagrees.
An ALJ may discount a claimant's testimony based on activities that are incompatible with the claimant's testimony regarding the severity of her symptoms. See Burrell v. Colvin, 775 F.3d 1133, 1137-38 (9th Cir. 2014) (explaining that “[i]nconsistencies between a claimant's testimony and the claimant's reported activities provide a valid reason for an adverse credibility determination”); Ghanim, 763 F.3d at 1165 (“Engaging in daily activities that are incompatible with the severity of symptoms alleged can support an adverse credibility determination.”); Garrison, 759 F.3d at 1016 (stating that a claimant's activities have “bearing on [his or her] credibility” if the reported “level of activity” is “inconsistent with [the claimant's] claimed limitations”).
Ninth Circuit authority, however, “requires the ALJ to specifically identify the testimony from a claimant she or he finds not to be credible and explain what evidence undermines that testimony.” Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020) (simplified); see also Burrell, 775 F.3d at 1138 (explaining that general findings are insufficient because the ALJ “must identify what testimony is not credible and what evidence undermines the claimant's complaints, ” and refusing to rely on a finding that did not meet “our requirements of specificity”) (simplified). That does not mean that an ALJ must “perform a line-by-line exegesis of the claimant's testimony, ” or “draft dissertations when denying benefits.” Lambert, 980 F.3d at 1277. But Ninth Circuit precedent “plainly requires” that an ALJ do more than “offer[] non-specific conclusions that [the claimant's] testimony [is] inconsistent with [certain evidence].” Id. (citations omitted).
Here, while summarizing Plaintiff's hearing and written testimony and pre-hearing brief, the ALJ noted that Plaintiff testified that she “perform[e]d a wide range of activities of daily living that indicate that her symptoms and impairments are less severe and functionally limiting than she alleged.” (Tr. 19.) The ALJ proceeded to note that Plaintiff reported that (1) she was homeschooling her son at the time of the hearing, (2) she drives her son to a chess club at the library, (3) she takes her son to parks, a children's museum, a skate park, and an archery range, (4) at the archery range, “she and her son had made friends and hung out, ” (5) she “has roller blades that she used, ” (6) “she and her son belonged to the Oregon Mycology Society and participated in an annual mushroom festival, ” (7) she provides “a lot of care” for her “disabled” support dog, and (8) she prepares all the meals and does the laundry, housework, and shopping. (Tr. 19-20.)
There are several reasons why the ALJ erred in discounting Plaintiff's testimony based on her reported activities. First, the ALJ's decision fails to satisfy the Ninth Circuit's decision in Lambert. In Lambert, the ALJ “noted generically that ‘the claimant's statements concerning the intensity, persistence and limiting effects of [her] symptoms are not entirely consistent with the objective medical and other evidence for the reasons explained in this decision.'” 980 F.3d at 1277. The ALJ also “provided four high-level reasons as to why [the claimant's] allegations were ‘less than fully consistent with the evidence.'” Id. Specifically, the ALJ cited these four reasons:
First, [the claimant] had ‘not generally received the type of medical treatment one would expect for a totally disabled individual.' Second, the ‘record reflect[ed] significant gaps in [the claimant's] history of treatment and relatively infrequent trips to the doctor for the allegedly disabling symptoms.' Third, [the claimant's] ‘use of medications does not suggest the presence of impairments which is more limiting than found in this decision.' And finally, ‘medications have been relatively effective in controlling [the claimant's] symptoms.'Id. at 1270.
The Ninth Circuit determined that the ALJ's decision did “not meet the requirements set forth in our cases and d[id] not permit meaningful review.” Id. at 1277. The Ninth Circuit held that the ALJ's generic introductory remark was inadequate because it “did not identify what parts of the claimant's testimony were not credible and why.” Id. (simplified). For that same reason, the Ninth Circuit held that the ALJ's “four high-level reasons” were inadequate, noting that the ALJ's discussion was “brief” and equated to offering general, non-specific conclusions. Id. In so holding, the Ninth Circuit explained that the ALJ's “relatively detailed overview” of the medical history was “not the same as providing clear and convincing reasons for finding the claimant's symptom testimony not credible.” Id. at 1278 (citation omitted). The Ninth Circuit also explained that it was “understandable” that the district court “attempted to fill in the ALJ's reasoning” and “shore up the ALJ's decision” by citing activities-related evidence and comparing it to “specific aspects of the medical evidence” (i.e., the general category under which the ALJ's reasons fit), but the district court's efforts were “unavailing.” Id. The Ninth Circuit explained that “‘[a]lthough the inconsistencies identified by the district court could be reasonable inferences drawn from the ALJ's summary of the evidence, the credibility determination is exclusively the ALJ's to make,' and ‘[federal courts] are constrained to review the reasons the ALJ asserts.'” Id. (citation omitted).
Similarly here, the ALJ's reasons for discounting Plaintiff's testimony, including Plaintiff's reported activities, were no more specific than the ALJ's reasons in Lambert. The ALJ did not identify any specific symptom testimony regarding Plaintiff's mental health that her activities contradicted. See Tanya P. v. Comm'r, Soc. Sec. Admin., No. 6:18-cv-00158-HZ, 2019 WL 4567580, at *4 n.3 (D. Or. Sept. 20, 2019) (stating “neither the ALJ nor the Commissioner indicated which symptom testimony regarding Plaintiff's mental health was contradicted by [her] activities, ” and it was “not clear how [her] activities are inconsistent with [her] testimony regarding her mental impairments”). Accordingly, the ALJ erred in discounting Plaintiff's testimony.
Additionally, it is not clear how the activities the ALJ relied on are inconsistent with Plaintiff's testimony about allegedly debilitating PTSD symptoms, which have resulted in notable interpersonal problems and emotional lability during interactions with others and periods of increased stress. The ALJ cited activities in which Plaintiff would be unlikely to interact with other people (in particular, men) in any meaningful way (e.g., she takes her son to the library, state and skate parks, the archery range, and mushroom picking). (See Tr. 38, 42-45, 238). Accordingly, substantial evidence does not support the ALJ's discounting of Plaintiff's testimony based on her activities. See Trevizo, 871 F.3d at 676-82 (noting that there were no “specific details” and “almost no information in the record” about the childcare activities the ALJ cited in discounting symptom testimony and opinion evidence, and noting that the “mere fact” that the claimant engaged in childcare activities did not “constitute an adequately specific conflict with her reported limitations” or “‘substantial evidence' inconsistent with [a provider's] informed opinion”).
3.Clinical Findings
The Commissioner argues that the ALJ provided a third and final reason for discounting Plaintiff's testimony: “[C]linical findings.” (Def.'s Br. at 3, citing Tr. 20, 26.) It is well settled, however, that inconsistencies with objective medical evidence, or a lack of supporting medical evidence, cannot provide the sole basis for discounting a claimant's testimony.[ See McClaren v. Saul, 812 Fed.Appx. 500, 501 (9th Cir. 2020) (stating that “inconsistencies with objective medical evidence . . . cannot provide the sole basis for an ALJ's credibility determination”); Valdez v. Berryhill, 746 Fed.Appx. 676, 677 (9th Cir. 2018) (addressing a case involving mental health limitations, stating that the ALJ appropriately found that the “the medical evidence did not support [the claimant's] testimony, ” and noting that “an ALJ may properly include lack of supporting medical evidence in the reasons to discredit claimant testimony as long as it is not the only reason”).
In any event, the Court notes that the record evidence reflects significant mental health clinical findings. (See Tr. 374-79, during an examination with a male psychologist, Plaintiff presented with “a level of distress not routinely seen demonstrated by patients outside an inpatient facility, ” validity issues “not suspected, ” and the psychologist stated that Plaintiff's “level of symptomatology is considered to reflect the top 5% that I have evaluated in the past year, ” Plaintiff's symptoms are “quite severe, ” it was “remarkable” that Plaintiff was at “only 30% service connected” disability at that time, Plaintiff “should be monitored very closely for increasing mood symptoms especially in the domain of suicidal ideation, ” and Plaintiff's “suspiciousness/trust issue do border on delusional”; Tr. 1298-99, a second male examining psychologist identified a “clinical significant level of suspiciousness and paranoia, ” “significant interpersonal problems in [Plaintiff's] work and personal life, ” and emotional lability that would present “a significant impairment in the workplace”; Tr. 169, during the period at issue, Plaintiff received a notice of termination of her rental agreement, alleging that she “harassed, yelled at, screamed at, and/or intentionally intimidated [her] landlord and/or landlord's agent, thereby causing the landlord and/or landlord's agent to fear for their safety”; Tr. 306-07, a VA social worker summarized “concerning” behaviors she had observed during her time working with Plaintiff, such as impaired judgment, an inability to “demonstrate appropriate when working with others” and “understand specific requests and follow through, ” and being fired “due to interpersonal difficulties”).
For these reasons, the Court concludes that the ALJ erred in discounting Plaintiff's testimony.
II. MEDICAL OPINION EVIDENCE
A. Applicable Law
Plaintiff filed her application in September 2017. (Tr. 13.) “For claims filed on or after March 27, 2017, Federal Regulation 20 C.F.R. 416.920c governs how an ALJ must evaluate medical opinion evidence.” Tyrone W. v. Saul, No. 3:19-cv-01719-IM, 2020 WL 6363839, at *6 (D. Or. Oct. 28, 2020) (citation omitted); see also Linda F. v. Saul, No. 20-cv-5076-MAT, 2020 WL 6544628, at *2 (W.D. Wash. Nov. 6, 2020) (“Because [the] plaintiff filed her applications after March 27, 2017, new regulations apply to the ALJ's evaluation of medical opinion evidence.”).
Under the new regulations, the Commissioner will “no longer give any specific evidentiary weight, ” let alone controlling weight, “to any medical opinion.” See Allen O. v. Comm'r of Soc. Sec., No. 3:19-cv-02080-BR, 2020 WL 6505308, at *5 (D. Or. Nov. 5, 2020) (simplified). Instead, as this Court recently explained, “the ALJ considers all medical opinions and evaluates their persuasiveness based on supportability, consistency, relationship with the claimant, specialization, and ‘other factors.'” Robert S. v. Saul, No. 3:19-cv-01773-SB, 2021 WL 1214518, at *3 (D. Or. Mar. 3, 2021) (simplified).
“The new 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. (simplified). At a minimum, “this appears to necessitate that an ALJ specifically account for the legitimate factors of supportability and consistency in addressing the persuasiveness of a medical opinion.” Id. (quoting Linda F., 2020 WL 6544628, at *2). Accordingly, “the more relevant the objective medical evidence and supporting explanations presented and the more consistent with evidence from other sources, the more persuasive a medical opinion or prior finding.” Id. (quoting Linda F., 2020 WL 6544628, at *2).
“The ALJ may but is not required to explain how other factors were considered, ” including (1) the “relationship with the claimant (length, purpose, and extent of treatment relationship; frequency of examination), ” (2) “whether there is an examining relationship, ” (3) specialization, and (4) “other factors, such as familiarity with other evidence in the claim file or understanding of the Social Security disability program's policies and evidentiary requirements.” Id. The ALJ is, however, “required to explain ‘how they considered other secondary medical factors [if] they find that two or more medical opinions about the same issue are equally supported and consistent with the record but not identical, '” and courts “must ‘continue to consider whether the ALJ's analysis has the support of substantial evidence.'” Id. (citations omitted).[
The parties agree that the new regulations govern in this case, but disagree about whether they supersede or effectively overrule Ninth Circuit case law developed under the prior regulatory scheme, namely, case law requiring an ALJ to provide clear and convincing or specific and legitimate reasons for discounting a medical opinion. (See Def.'s Br. at 5-8; Pl.'s Opening Br. at 9-11.) Consistent with its prior decisions, the Court will consider whether the ALJ adequately addressed the persuasiveness, including the supportability and consistency, of medical opinion evidence, because “[t]he Ninth Circuit has not yet addressed whether or how the new regulations alter the standards set forth in prior cases for rejecting a medical opinion, ” and “the new regulations still require the ALJ to explain [his] reasoning for discounting a medical opinion . . . to allow for meaningful judicial review.” Robert S., 2021 WL 1214518, at *4 (citations omitted).
B. Analysis
1. Dr. Alvord
a. Dr. Alvord's Opinion
The State of Oregon Disability Determination Services referred Plaintiff to Dr. Alvord for a psychodiagnostic evaluation on January 19, 2018. (Tr. 374-79.) Dr. Alvord's evaluation consisted of a clinical interview, mental status examination, and review of Plaintiff's adult function report and a “VAMC [t]elephone [e]ncounter note.” (Tr. 374.) In his report, Dr. Alvord “emphasized” at the outset that Plaintiff presented “with a level of distress not routinely seen demonstrated by patients outside of an inpatient facility.” (Id.) Dr. Alvord also stated that Plaintiff meets the criteria for “chronic PTSD severe” and “a clear manifestation of Bipolar II”; it was “noteworthy” that Plaintiff “suggested that she has not identified as suffering from bipolar other than ‘one time a doctor told [her she] had it but [she] was so afraid [she] didn't go back'”; and acquiring a “comprehensive history was very difficult” given Plaintiff's distress and thus any reported history was “considered far from comprehensive and conceivably lacking in accuracy.” (Tr. 374-75.)
During Dr. Alvord's clinical interview, Plaintiff reported that she received accommodations due to “early educational limitations, ” and served in the United States Navy. (Tr. 375.) Plaintiff also reported that she was a survivor of childhood abuse and neglect, domestic violence (physical, sexual, and emotional abuse), and MST, and therefore has been “unable to present for VA [medical] care given emotional triggers associated with that environment, ” which is “consistent with numerous other individuals [Dr. Alvord has] evaluated . . ., especially women, who have been sexually traumatized by the military[.]” (Id.)
As to Plaintiff's mental status examination, Dr. Alvord observed that Plaintiff “sobbed throughout the encounter” and “utilized almost an entire box of Kleenex, ” it was “almost everything [Dr. Alvord] could do to keep [Plaintiff] engaged in the examination and to gather the information contained in this report, ” Plaintiff's “symptomatology is considered to reflect the top 5% that [Dr. Alvord has] evaluated in the past year, ” and “[v]alidity issues were not suspected.” (Tr. 377.) Dr. Alvord's diagnoses were bipolar affective disorder, severe and chronic PTSD, somatic symptom disorder, borderline and histrionic personality traits, and dissociative disorder. (Tr. 378.) Dr. Alvord added that it was “remarkable” that Plaintiff at that time was “only 30% service connected, ” Plaintiff's symptoms are “quite severe, ” Plaintiff “may benefit from far more intensive psychiatric care, ” Plaintiff's prognosis is “guarded, ” and Plaintiff “should be monitored very closely for increasing mood symptoms especially in the domain of suicidal ideation.” (Id.)
As to Plaintiff's functional capacity, Dr. Alvord stated that Plaintiff would have difficulty performing several work-related tasks. (Tr. 379.) Those tasks included “performing simple and repetitive tasks, ” “accepting instructions from supervisors, ” “interacting with co-workers and the public, ” “performing work activities on a consistent basis without special or additional instructions/accommodations, ” “maintaining regular attendance in the workplace, ” and “completing a normal workday/workweek without interruptions from a psychiatric condition.” (Id.)
b. Disposition
The Commissioner asserts that the ALJ appropriately rejected Dr. Alvord's opinion based on Plaintiff's reported activities and unremarkable mental status examinations. (Def.'s Br. at 10-11, citing Tr. 23.) The Court disagrees and finds that the ALJ erred in discounting Dr. Alvord's opinion.
In finding Dr. Alvord's opinion “unpersuasive, ” the ALJ offered only the non-specific conclusion that Dr. Alvord's opinion is “highly inconsistent” with Plaintiff's activities, such as caring for a disabled dog, preparing meals, performing household chores, homeschooling her son, going on one vacation to a place she once lived, and taking her son to camp, state and skate parks, a children's museum, the archery range, and the library. (Tr. 23.) For the same reasons discussed above with respect to Plaintiff's symptom testimony, the ALJ erred by not explaining how Plaintiff's activities were inconsistent with Dr. Alvord's opinion. See Popa v. Berryhill, 872 F.3d 901, 907 (9th Cir. 2017) (explaining that the ALJ erred in discounting an examining psychologist's opinion, and noting although the ALJ stated the opinion conflicted with the claimant's “considerable activities of daily living” and cited activities, the ALJ “simply stated conclusions” and “provided no explanation as to why” the activities were inconsistent with an opinion about regular attendance). In fact, it does not appear that the cited activities are inconsistent with Dr. Alvord's opinion.
The ALJ also discounted Dr. Alvord's opinion based on mental status examinations that included “fewer, less extreme abnormalities overall and [did] not support the debilitating functional limitations provided by Dr. Alvord.” (Tr. 23.) Most of the records the ALJ cites in support of this finding are not inconsistent with Dr. Alvord's opinion-and in fact appear to support Dr. Alvord's opinion-and fall short of rising to the level of substantial evidence. (See Tr. 397-98, a female examining psychologist noted that Plaintiff suffers from “clinically significant distress or impairment in social, occupational, or other important areas of functioning” due to PTSD, and Plaintiff reported “doing well” and an improved mood and ability to engage in daytime activities with her son due to recent “stability of housing, ” but also reported “loss of recent employment” that was stressful, difficult, and involved “differing views” about workplace procedures, she was “triggered by reports of police brutality” based on “past military trauma of witnessing violence, ” and “relationships with m[e]n can be difficult”; Tr. 427-28, Plaintiff exhibited appropriate behavior with her son and a female social worker present, and it was noted that Plaintiff requested mental health support but skipped her appointment due to her reluctance to pursue treatment, especially through the VA because it is “triggering”; Tr. 444-45, a female social worker received a call from Plaintiff about a “man next door” who took pictures of her with “a flash” the night before and conducted a meeting “mainly focused” on Plaintiff's “recent for cause termination, ” during which Plaintiff was “anxious” and “very distressed” and reported that her “mental health symptoms are exacerbated because [a] neighbor is covertly recording her and her child while outside and turning photos/videos in to [the] property manager”; Tr. 452, Plaintiff was “slightly anxious with congruent affect, ” engaged appropriately, and exhibited appropriate behavior with a female social worker, but also reported “trauma throughout her life, including military sexual trauma, ” recently losing her job, and believing “she is unable to work due to uncontrolled symptoms of PTSD”; Tr. 548, Plaintiff was “appropriate to content” on a call with a female social worker about concerns regarding an apartment inspection that failed due to a hot water heater not being turned on and the expiration of a hotel voucher; Tr. 1192, a female nurse practitioner's mental status exam revealed that Plaintiff was “[t]earful at times when she talked about her trauma process” and Plaintiff's mood was “[e]motional [and] depressed”).
In light of the foregoing, the Court finds that the ALJ erred in discounting Dr. Alvord's opinion.
2. Dr. Bartos
a. Dr. Bartos's Opinion
On March 27, 2018, Plaintiff presented for a compensation and pension (“C&P”) examination conducted by Dr. Bartos, a psychologist with the VA. (Tr. 1292-99.) In his report, Dr. Bartos explained that Plaintiff's current diagnosis was “severe” PTSD and Plaintiff's PTSD results in “[t]otal occupational and social impairment.” (Tr. 1293-95.) He reviewed Plaintiff's VA medical records, witness statements about Plaintiff's employability, Dr. Alvord's report, and a report that Mary Ann Price, Ph.D. (“Dr. Price”) prepared as part of a prior C&P examination, and concluded there were “significant discrepancies in the findings from [Drs. Alvord's and Price's] reports.” (Id.)
Dr. Bartos noted that Plaintiff reported that she was a survivor and perpetrator of domestic violence, exhibits a “pattern of behavior where she gets into relationships with abusive men who are manipulative, ” reconnected with an ex-boyfriend who “can . . . be abusive” and helps care for her son, temporarily moved to Puerto Rico to “start over” after her now-ex-husband “started a fire in their apartment, ” and she earned a master's degree in August 2017. (Tr. 1295.) Dr. Bartos also noted that Plaintiff does not take any medication, participated in weekly counseling sessions between 2013 and 2016, does not trust men, has “not been able to work with men in the past, ” “gets triggered by men in public, ” feels “uncomfortable with male providers and VA services, ” and recently served for two months as an academic director and teacher at a school, but had “many triggers with her male boss” and was “fired for ‘bonding issues with staff, organization and focus issues, and for not following the school culture.'” (Id.)
As to behavioral observations, Dr. Bartos stated that Plaintiff's “affect was labile ranging from anger to tearfulness, ” it was “difficult to obtain a clear chronological psychosocial history due to [Plaintiff's] emotional lability and tangential nature, ” and Plaintiff reported “a clinically significant level of suspiciousness and paranoia.” (Tr. 1298.) Dr. Bartos added that Plaintiff “present[ed] with PTSD symptom frequency and severity much greater than was documented” in Dr. Price's report, Plaintiff's “functional impairment [was] also deemed to be significantly higher than was documented” in Dr. Price's report, and the emotional lability that Dr. Alvord observed was “a symptom of trauma and is considered to be [due to] a situationally-induced state (i.e., when [Plaintiff] is being evaluated by a man [versus] a woman, or . . . experiencing increased stress) and not a trait that would require a separate diagnosis” of bipolar disorder. (Id.)
Dr. Bartos also addressed Plaintiff's “ability to function in an occupational setting and describe[d] any identified functional limitations.” (Tr. 1299) (all caps omitted). With respect to these issues, Dr. Bartos explained that Plaintiff's “mistrust and suspiciousness has resulted in significant interpersonal problems in her work and personal life which make it difficult for [her] to establish and maintain effective relationships, ” and Plaintiff's “avoidance of interaction with men (secondary to PTSD) and . . . tendency to have intense emotional and psychological reactions in certain situations with men further limits her ability to work with others and engage in working interpersonal relationships with potential employers, co-workers, or clientele.” (Id.)
Dr. Bartos explained that Plaintiff's emotional lability is “a significant impairment in the workplace in that she has strong emotional reactions (dissociative) that she is unable to control, ” and Plaintiff's “occupational functioning would also be impacted by the hyperarousal symptoms of PTSD (hypervigilance, decreased concentration, and startle response) in that they would make sustained attention, organization, and attention to detail difficult.” (Id.)
b. Disposition
The Commissioner argues that the ALJ appropriately discounted Dr. Bartos's opinion based on Plaintiff's reported activities and “more benign” mental status examinations, and because Dr. Bartos “saw Plaintiff on only one occasion[.]” (Def.'s Br. at 9, citing Tr. 22.) The Court disagrees.
The ALJ's reliance on Plaintiff's reported activities was insufficient for the same reasons discussed above with respect to Dr. Alvord's opinion. (See Tr. 22, “Furthermore, Dr. Bartos [sic] conclusions are inconsistent with the wide range of activities of daily living that the claimant reported.”). So too with respect to the ALJ's reliance on “generally unremarkable objective findings, ” as many of the findings the ALJ cited actually support Plaintiff's symptom testimony, Dr. Bartos's opinion, and Dr. Alvord's opinion, and fall short of amounting to substantial evidence supporting the ALJ's analysis.
With respect to Dr. Bartos's relationship with Plaintiff being limited to a one-time examination, that reason alone is insufficient to discount his opinion. See Patricia P. v. Comm'r of Soc. Sec., No. 20-5230-MLP, 2020 WL 7488814, at *2 n.2 (W.D. Wash. Dec. 21, 2020) (“The ALJ also noted Dr. Wheeler performed a ‘one time exam,' but the Commissioner acknowledges this is insufficient, alone, to discount a medical opinion.”); see also David D. v. Saul, 405 F.Supp.3d 868, 881 n.5 (D. Or. 2019) (noting that the Commissioner “concede[d] that . . . a onetime examination is not a proper basis, standing alone, to discount [these doctors' medical] opinions, ” but argued that it was “a ‘legitimate factor' the ALJ could consider, ” which the district court rejected under the circumstances). In any event, this case must be remanded for further proceedings, as explained below.
For these reasons, the Court concludes that the ALJ erred in discounting Dr. Bartos's opinion.
III. REMEDY
A. Applicable Law
“Generally when a court of appeals reverses an administrative determination, ‘the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.'” Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (citing INS v. Ventura, 537 U.S. 12, 16 (2002)). In a number of cases, however, the Ninth Circuit has “stated or implied that it would be an abuse of discretion for a district court not to remand for an award of benefits when [the three-part credit-as-true standard is] met.” Garrison, 759 F.3d at 1020 (citations omitted).
The credit-as-true standard is met if three conditions are satisfied: “(1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand.” Id. (citations omitted). Even when the credit-as-true standard is met, the district court retains the “flexibility to remand for further proceedings when the record [evidence] as a whole creates serious doubt as to whether the claimant is, in fact, disabled within the meaning of the Social Security Act.” Id. at 1021.
B. Analysis
The Court must remand this case for further proceedings because Plaintiff has not met the credit-as-true standard (as she appears to acknowledge by not briefing the issue).
The record includes the VE's responses to hypothetical questions based on (1) the ALJ's RFC, (2) the ALJ's RFC plus a limitation about exposure to fumes, gasses, dust, odors, and other pulmonary irritants, (3) “Exhibit 18E, ” i.e., the letter from the social worker located at Tr. 305-07, summarizing concerning behaviors she observed while working with Plaintiff, and (4) Plaintiff's hearing counsel's own “vocationally relevant terms” or interpretation of evidence about Plaintiff's limitations. (Tr. 55-61.) The VE, however, did not provide any responses to hypothetical questions that included specific limitations from the improperly rejected evidence, which is what Plaintiff asks the Court to credit as true. (Pl.'s Opening Br. at 9, 13, 15.) Thus, the Court must remand for further proceedings. See Joan L. v. Comm'r, Soc. Sec. Admin., No. 6:18-cv-00984-HZ, 2019 WL 4167134, at *8 (D. Or. Aug. 31, 2019) (holding that the credit-as-true standard was not met and a remand for further proceedings was appropriate because “[e]ven if the improperly discounted testimony of Plaintiff and the improperly discredited opinions of Dr. Cole and Dr. Leinenbach were credited as true, the VE did not provide an opinion regarding all the limitations Plaintiff wishes the Court to credit”); see also Massey v. Comm'r Soc. Sec. Admin., 400 Fed.Appx. 192, 195 (9th Cir. 2010) (remanding for further proceedings because due to the VE's “inaudible” responses, the record did not include answers from the VE to hypothetical questions that included “limitations documented” in the “improperly rejected” evidence).
In summary, the ALJ committed harmful error in denying Plaintiff's DIB application, and the Court must remand for further administrative proceedings consistent with this opinion.
CONCLUSION
Based on the foregoing reasons, the Court recommends that the district judge REVERSE the Commissioner's decision and REMAND this case for further proceedings consistent with this opinion.
SCHEDULING ORDER
The Court will refer its Findings and Recommendation to a district judge. Objections, if any, are due within fourteen (14) days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen (14) days. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.