Opinion
No. 1:19-cv-03220-MKD
08-20-2020
MECHELLE H., Plaintiff, v. ANDREW M. SAUL, COMMISSIONER OF SOCIAL SECURITY, Defendant.
ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ECF Nos. 19, 21
Before the Court are the parties' cross-motions for summary judgment. ECF Nos. 19, 21. The parties consented to proceed before a magistrate judge. ECF No. 8. The Court, having reviewed the administrative record and the parties' briefing, is fully informed. For the reasons discussed below, the Court grants Plaintiff's motion, ECF No. 19, and denies Defendant's motion, ECF No. 21.
JURISDICTION
The Court has jurisdiction over this case pursuant to 42 U.S.C. §§ 405(g); 1383(c)(3).
STANDARD OF REVIEW
A district court's review of a final decision of the Commissioner of Social Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is limited; the Commissioner's decision will be disturbed "only if it is not supported by substantial evidence or is based on legal error." Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). "Substantial evidence" means "relevant evidence that a reasonable mind might accept as adequate to support a conclusion." Id. at 1159 (quotation and citation omitted). Stated differently, substantial evidence equates to "more than a mere scintilla[,] but less than a preponderance." Id. (quotation and citation omitted). In determining whether the standard has been satisfied, a reviewing court must consider the entire record as a whole rather than searching for supporting evidence in isolation. Id.
In reviewing a denial of benefits, a district court may not substitute its judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). If the evidence in the record "is susceptible to more than one rational interpretation, [the court] must uphold the ALJ's findings if they are supported by inferences reasonably drawn from the record." Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court "may not reverse an ALJ's decision on account of an error that is harmless." Id. An error is harmless "where it is inconsequential to the [ALJ's] ultimate nondisability determination." Id. at 1115 (quotation and citation omitted). The party appealing the ALJ's decision generally bears the burden of establishing that it was harmed. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009).
FIVE-STEP EVALUATION PROCESS
A claimant must satisfy two conditions to be considered "disabled" within the meaning of the Social Security Act. First, the claimant must be "unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Second, the claimant's impairment must be "of such severity that he is not only unable to do his previous work[,] but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
The Commissioner has established a five-step sequential analysis to determine whether a claimant satisfies the above criteria. See 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). At step one, the Commissioner considers the claimant's work activity. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is engaged in "substantial gainful activity," the Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 404.1520(b), 416.920(b).
If the claimant is not engaged in substantial gainful activity, the analysis proceeds to step two. At this step, the Commissioner considers the severity of the claimant's impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant suffers from "any impairment or combination of impairments which significantly limits [his or her] physical or mental ability to do basic work activities," the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c), 416.920(c). If the claimant's impairment does not satisfy this severity threshold, however, the Commissioner must find that the claimant is not disabled. Id.
At step three, the Commissioner compares the claimant's impairment to severe impairments recognized by the Commissioner to be so severe as to preclude a person from engaging in substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment is as severe or more severe than one of the enumerated impairments, the Commissioner must find the claimant disabled and award benefits. 20 C.F.R. §§ 404.1520(d), 416.920(d).
If the severity of the claimant's impairment does not meet or exceed the severity of the enumerated impairments, the Commissioner must pause to assess the claimant's "residual functional capacity." Residual functional capacity (RFC), defined generally as the claimant's ability to perform physical and mental work activities on a sustained basis despite his or her limitations, 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1), is relevant to both the fourth and fifth steps of the analysis.
At step four, the Commissioner considers whether, in view of the claimant's RFC, the claimant is capable of performing work that he or she has performed in the past (past relevant work). 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant is capable of performing past relevant work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f). If the claimant is incapable of performing such work, the analysis proceeds to step five.
At step five, the Commissioner considers whether, in view of the claimant's RFC, the claimant is capable of performing other work in the national economy. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). In making this determination, the Commissioner must also consider vocational factors such as the claimant's age, education, and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If the claimant is capable of adjusting to other work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). If the claimant is not capable of adjusting to other work, analysis concludes with a finding that the claimant is disabled and is therefore entitled to benefits. Id.
The claimant bears the burden of proof at steps one through four above. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to step five, the burden shifts to the Commissioner to establish that 1) the claimant is capable of performing other work; and 2) such work "exists in significant numbers in the national economy." 20 C.F.R. §§ 404.1560(c)(2), 416.960(c)(2); Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012).
ALJ'S FINDINGS
On October 14, 2015, Plaintiff applied both for Title II disability insurance benefits and Title XVI supplemental security income benefits alleging a disability onset date of January 30, 2014. Tr. 112, 237-48. The applications were denied initially and on reconsideration. Tr. 139-42; Tr. 147-51. Plaintiff appeared before an administrative law judge (ALJ) on May 1, 2018. Tr. 35-83. On September 14, 2018, the ALJ denied Plaintiff's claim. Tr. 12-34.
At step one of the sequential evaluation process, the ALJ found Plaintiff, who met the insured status requirements through March 31, 2019, has not engaged in substantial gainful activity since January 30, 2014. Tr. 17. At step two, the ALJ found that Plaintiff has the following severe impairments: carpal tunnel syndrome, asthma, anxiety disorder, major depressive disorder, post-traumatic stress disorder, and substance abuse disorder. Id.
At step three, the ALJ found Plaintiff does not have an impairment or combination of impairments that meets or medically equals the severity of a listed impairment. Tr. 18. The ALJ then concluded that Plaintiff has the RFC to perform light work with the following limitations:
[Plaintiff] can frequently climb ramps and stairs. She can frequently balance, stoop, kneel, and crouch. [Plaintiff] cannot climb ladders, ropes, and scaffolds or crawl. She can frequently handle and finger. [Plaintiff] must avoid concentrated exposure to extreme cold, vibrations, and hazards. [Plaintiff] can perform simple, routine tasks and follow short, simple instructions. She can do work that needs little or no judgment and can perform simple duties that can be learned on the job in a short period. [Plaintiff[ requires a work environment with minimal supervisor contact. (Minimal contact does not preclude all contact; rather it means contact does not occur regularly. Minimal contact also does not preclude simple and superficial exchanges and it does not preclude being in proximity to the supervisor). [Plaintiff] can work in proximity to coworkers but not in a cooperative or team effort. She requires a work environment that has no more than superficial interactions with coworkers. [Plaintiff[ requires a work environment that is predictable and with few work setting changes. She requires a work environment without public contact.Tr. 20.
At step four, the ALJ found Plaintiff is unable to perform any of her past relevant work. Tr. 26. At step five, the ALJ found that, considering Plaintiff's age, education, work experience, RFC, and testimony from the vocational expert, there were jobs that existed in significant numbers in the national economy that Plaintiff could perform, such as small products assembler, marker, and garment sorter. Tr. 27. Therefore, the ALJ concluded Plaintiff was not under a disability, as defined in the Social Security Act, from the alleged onset date of January 30, 2014, through the date of the decision. Tr. 28.
On July 15, 2019, the Appeals Council denied review of the ALJ's decision, Tr. 1-6, making the ALJ's decision the Commissioner's final decision for purposes of judicial review. See 42 U.S.C. § 1383(c)(3).
ISSUES
Plaintiff seeks judicial review of the Commissioner's final decision denying her disability insurance benefits under Title II and supplemental security income benefits under Title XVI of the Social Security Act. Plaintiff raises the following issues for review:
1. Whether the ALJ properly evaluated Plaintiff's symptom claims;ECF No. 19 at 4-21.
2. Whether the ALJ properly evaluated lay witness evidence; and
3. Whether the ALJ properly evaluated medical opinion evidence.
DISCUSSION
A. Plaintiff's Symptom Claims
Plaintiff faults the ALJ for failing to rely on reasons that were clear and convincing in discrediting her symptom claims. ECF No. 19 at 4-14. An ALJ engages in a two-step analysis to determine whether to discount a claimant's testimony regarding subjective symptoms. SSR 16-3p, 2016 WL 1119029, at *2. "First, the ALJ must determine whether there is objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged." Molina, 674 F.3d at 1112 (quotation marks omitted). "The claimant is not required to show that [the claimant's] impairment could reasonably be expected to cause the severity of the symptom [the claimant] has alleged; [the claimant] need only show that it could reasonably have caused some degree of the symptom." Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009).
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 [the ALJ] gives 'specific, clear and convincing reasons' for the rejection." Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citations omitted). General findings are insufficient; rather, the ALJ must identify what symptom claims are being discounted and what evidence undermines these claims. Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995); Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (requiring the ALJ to sufficiently explain why it discounted claimant's symptom claims)). "The clear and convincing [evidence] standard is the most demanding required in Social Security cases." Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. Comm'r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)).
Factors to be considered in evaluating the intensity, persistence, and limiting effects of a claimant's symptoms include: 1) daily activities; 2) the location, duration, frequency, and intensity of pain or other symptoms; 3) factors that precipitate and aggravate the symptoms; 4) the type, dosage, effectiveness, and side effects of any medication an individual takes or has taken to alleviate pain or other symptoms; 5) treatment, other than medication, an individual receives or has received for relief of pain or other symptoms; 6) any measures other than treatment an individual uses or has used to relieve pain or other symptoms; and 7) any other factors concerning an individual's functional limitations and restrictions due to pain or other symptoms. SSR 16-3p, 2016 WL 1119029, at *7; 20 C.F.R. §§ 404.1529(c), 416.929(c). The ALJ is instructed to "consider all of the evidence in an individual's record," to "determine how symptoms limit ability to perform work-related activities." SSR 16-3p, 2016 WL 1119029, at *2.
The ALJ found that Plaintiff's medically determinable impairments could reasonably be expected to cause some of the alleged symptoms, but that Plaintiff's statements concerning the intensity, persistence, and limiting effects of her symptoms were not entirely consistent with the evidence. Tr. 22.
1. Objective Evidence
The ALJ found Plaintiff's symptom complaints are inconsistent with the objective evidence. Tr. 20-23. An ALJ may not discredit a claimant's symptom testimony and deny benefits solely because the degree of the symptoms alleged is not supported by objective medical evidence. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991); Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989); Burch, 400 F.3d at 680. However, the objective medical evidence is a relevant factor, along with the medical source's information about the claimant's pain or other symptoms, in determining the severity of a claimant's symptoms and their disabling effects. Rollins, 261 F.3d at 857; 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2).
The ALJ found Plaintiff's physical symptom complaints are out of proportion with her typically unremarkable presentation during treatment visits. Tr. 23. While Plaintiff alleges difficulty walking for prolonged periods due to asthma, she generally had normal breathing with clear lungs and no wheezing, including an appointment where she reported daily use of her inhaler and dyspnea, and she had a normal gait. Tr. 20-21, 23 (citing Tr. 378, 385, 555-59, 611, 618). Plaintiff also had a normal pulmonary function test. Tr. 21, 23 (citing Tr. 618). Plaintiff reports difficulty lifting items and using her hands due to carpal tunnel, but she had normal strength, tone and range of motion in her upper extremities, though she had a positive Phalen's and Finkel's on one examination. Tr. 20-21, 23 (citing Tr. 381-82, 555-59, 613).
Similarly, the ALJ found Plaintiff's mental health symptom complaints were out of proportion with her typically unmarkable presentation at treatment visits. Tr. 21-23. While Plaintiff has reported difficulty leaving her home, and was noted as being on the verge of tears in early 2014, the ALJ noted Plaintiff had normal mood, affect, and memory, and her provider noted she was stabilizing at a modest pace. Tr. 21 (citing Tr. 378, 384). The same records indicate Plaintiff was anxious and fearful, Tr. 377, and "frequently on the verge of tears," Tr. 384. In June 2015, Plaintiff reported worsening of her symptoms, but Plaintiff had a normal mental status examination besides being somewhat anxious and initially having rapid speech that slowed to normal, and by the end of 2015, she was noted as anxious and depressed but talkative, cooperative, pleasant, and well-groomed. Tr. 21-22 (citing Tr. 353-54, 426). However, at the appointments, Plaintiff reported not leaving her home, having nightmares and panic attacks, and her provider noted Plaintiff was upset and tearful, and her "anxiety is not controlled at all." Tr. 353- 54, 426. Plaintiff's providers noted some abnormalities in 2016, including slightly agitated motor activity, pressured speech, impaired insight/judgement, and some paranoia, though mental status examinations generally demonstrated normal memory, attention, concentration, speech, and cognitive functioning. Tr. 22 (citing Tr. 499, 504, 510, 521, 540, 546). In 2017, Plaintiff continued to report difficulty leaving her home, and she continued to be tearful, depressed and anxious, with normal to rapid speech, tangential thoughts, and impaired judgment and insight but normal attention, concentration, memory and cognitive functioning. Tr. 22 (citing Tr. 579). In 2018, Plaintiff was scared and sad, with normal to rapid speech, her thoughts were less tangential, and the ALJ found her examinations were otherwise normal. Tr. 22 (citing Tr. 599, 626, 630).
While the ALJ summarized some of the relevant evidence and found the objective evidence is inconsistent with Plaintiff's symptom claims, an ALJ must consider all of the relevant evidence in the record and may not point to only those portions of the records that bolster his findings. See, e.g., Holohan v. Massanari, 246 F.3d 1195, 1207-08 (9th Cir. 2001) (holding that an ALJ cannot selectively rely on some entries in plaintiff's records while ignoring others). The ALJ is not permitted to "cherry pick" from mixed evidence to support a denial of benefits. Garrison, 759 F.3d at 1017 n.23. As discussed herein, the ALJ cited portions of the record showing milder examination findings while the longitudinal record showed more mixed results, leading to a characterization of the medical evidence as a whole that is not supported by substantial evidence.
There are multiple references to Plaintiff's suicidal ideation throughout the record, which the ALJ did not discuss. Tr. 420, 422, 546, 565, 601. Even at appointments where Plaintiff reported she was doing "better," she was observed as labile, crying, and tangential. Tr. 603-04. When Plaintiff was noted as "less" tangential than previous visits, she still had continued anxiety, crying, and rapid speech during the appointment, and endorsed thoughts of suicide. Tr. 602. While the ALJ noted Plaintiff's examinations were "normal" in 2018 besides notes she was scared and sad, with normal to rapid speech, and less tangential thoughts, Tr. 22, the ALJ cited to examinations that included multiple additional abnormalities including notes Plaintiff was worried, crying, and endorsed suicidal ideation, Tr. 599, and she was depressed, anxious, and tearful, with moderate insight/judgment, Tr. 626, 630. As the ALJ's characterization of the medical evidence as a whole is not supported by substantial evidence, this was not a clear and convincing reason to reject Plaintiff's symptom claims.
2. Improvement with Treatment
The ALJ found Plaintiff's improvement with treatment is inconsistent with her symptom complaints. Tr. 23. The effectiveness of treatment is a relevant factor in determining the severity of a claimant's symptoms. 20 C.F.R. §§ 404.1529(c)(3), 614.929(c)(3); see Warre v. Comm'r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006); Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (a favorable response to treatment can undermine a claimant's complaints of debilitating pain or other severe limitations).
The ALJ noted Plaintiff had improvement in her symptoms when she was taking her medication, including improvement in her ability to sleep, eat daily, and leave her house. Tr. 23-24 (citing Tr. 509, 599, 606, 613, 639). At one of the cited appointments, Plaintiff reported some of her medications were stolen and she was taking the remaining medications as prescribed, and even with medication, Plaintiff was scared, sad, crying during the appointment, with normal to rapid speech, and though her thoughts were "less" tangential than the prior visit, they remained tangential. Tr. 599. Plaintiff also reported continued suicidal ideation. Id. At another cited appointment, while Plaintiff reported doing "better," she also stated it was one of her good days, yet Plaintiff remained anxious, with a dysthymic mood, paranoia, and she had impaired insight and judgment. Tr. 503-04. At another appointment, Plaintiff reported taking her medications as prescribed, but reported "difficulty functioning in all major life roles," difficulty leaving the home and completing sentences, and she was fearful, crying, and labile during the appointment, with tangential thoughts, paranoid thoughts, and rapid speech. Tr. 606. At a November 2017 visit, Plaintiff reported doing better and taking her medications, but Plaintiff remained anxious, tangential and difficult to redirect, and paranoid, and she had only moderate insight and judgment. Tr. 63940. One cited visit was for treatment of carpal tunnel, during which Plaintiff reported doing "better" and taking her medications, but there are no notes about her psychological functioning. Tr. 613-14. The ALJ erred in finding that Plaintiff's improvement with treatment was inconsistent with her allegations, as the finding is not supported by substantial evidence.
3. Lack of Treatment
The ALJ found Plaintiff's lack of mental health treatment is inconsistent with her symptom claims. Tr. 23-24. An unexplained, or inadequately explained, failure to seek treatment or follow a prescribed course of treatment may be considered when evaluating the claimant's subjective symptoms. Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007). And evidence of a claimant's self-limitation and lack of motivation to seek treatment are appropriate considerations in determining the credibility of a claimant's subjective symptom reports. Osenbrock v. Apfel, 240 F.3d 1157, 1165-66 (9th Cir. 2001); Bell-Shier v. Astrue, 312 F. App'x 45, *3 (9th Cir. 2009) (unpublished opinion) (considering why plaintiff was not seeking treatment). When there is no evidence suggesting that the failure to seek or participate in treatment is attributable to a mental impairment rather than a personal preference, it is reasonable for the ALJ to conclude that the level or frequency of treatment is inconsistent with the alleged severity of complaints. Molina, 674 F.3d at 1113-14. But when the evidence suggests lack of mental health treatment is partly due to a claimant's mental health condition, it may be inappropriate to consider a claimant's lack of mental health treatment when evaluating the claimant's failure to participate in treatment. Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996).
The ALJ noted Plaintiff discontinued her medication in August 2017, despite encouragement to continue taking it. Tr. 23-24 (citing Tr. 453, 503, 646). Plaintiff did not contact a provider for a refill until October 2017 when she again reported the medications were helpful. Tr. 24 (citing Tr. 606, 639, 646). Plaintiff's mental health provider was unable to reach her from September 22, 2017 through December 2017. Tr. 24 (citing Tr. 658). From December 2017 through March 2018, Plaintiff reported taking her medication but with poor compliance at times. Tr. 24 (citing Tr. 599, 601, 629).
While the ALJ discussed Plaintiff's periods in which she did not take her medication or attend counseling appointments, the ALJ did not address any of the reasons why Plaintiff was not compliant with treatment. Tr. 23-24. Plaintiff reported she stopped taking her medications because she was feeling foggy due to her medications, and restarted her medications on a lower dose. Tr. 646. She reported not taking her medications once because they were stolen and she had not been able to get them refilled, Tr. 599, and sometimes because she forgot to take them and felt they would not help with her problems with her daughter, but agreed to try to remember to take them daily. Tr. 629. Plaintiff also missed counseling appointments due to transportation issues, being ill, feeling treatment was not effective, difficulty connecting with her therapist, and due to being too anxious or paranoid to leave her home. Tr. 53-56, 348, 441, 579, 622, 638. The ALJ erred in failing to consider the reasons Plaintiff did not always comply with treatment. See SSR 16-3p *8 (March 16, 2016), available at 2016 WL 1119029 (instructing that an ALJ "will not find an individual's symptoms inconsistent with the evidence in the record on this basis without considering possible reasons he or she may not comply with treatment or seek treatment consistent with the degree of his or her complaints."). On remand, the ALJ is instructed to consider the reasons Plaintiff offered for her medication and treatment noncompliance.
While the ALJ offered an additional reason to reject Plaintiff's symptom claims, the Court finds the ALJ erred in his consideration of Plaintiff's symptom complaints for the reasons discussed supra. On remand, the ALJ is instructed to incorporate Plaintiff's reported limitations into the RFC or give clear and convincing reasons, supported by substantial evidence, to reject Plaintiff's symptom claims.
B. Lay Witness Evidence
Plaintiff contends the ALJ erred in rejecting the lay witness statements of Bill Hughes, Martha Boersma, and E. Psoinos. ECF No. 19 at 14-17. An ALJ must consider the statement of lay witnesses in determining whether a claimant is disabled. Stout v. Comm'r of Soc. Sec. Admin., 454 F.3d 1050, 1053 (9th Cir. 2006). Lay witness evidence cannot establish the existence of medically determinable impairments, but lay witness evidence is "competent evidence" as to "how an impairment affects [a claimant's] ability to work." Id.; 20 C.F.R. § 416.913; see also Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th Cir. 1993) ("[F]riends and family members in a position to observe a claimant's symptoms and daily activities are competent to testify as to her condition."). If a lay witness statement is rejected, the ALJ "'must give reasons that are germane to each witness.'" Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996) (citing Dodrill, 12 F.3d at 919).
Plaintiff's husband, Bill Hughes, completed a third-party function report, wrote a letter, and testified at the hearing regarding Plaintiff's functioning. Tr. 59-71, 271-78, 333. Mr. Hughes stated Plaintiff cannot interact well with others as she gets angry, emotional and begins to cry. Tr. 271. Mr. Hughes reported Plaintiff can generally handle tasks and personal care in her home, but needs assistance with anything outside of the home, including reminders to attend appointments, she is accompanied when she leaves the home, and she is driven as Plaintiff does not drive due to anxiety. Tr. 272-75. He reported Plaintiff cannot handle stress, cannot handle money/bills, and has difficulty completing tasks, concentrating, following instructions, understanding, remembering things, and getting along with others. Tr. 274-77. He testified Plaintiff has periods where she loses her temper then falls into a depression, and she experiences panic attacks. Tr. 66-67.
Plaintiff's mother, Martha Boersma, wrote a letter regarding Plaintiff's functioning. Tr. 334. Ms. Boersma stated Plaintiff is afraid to leave her home, experiences panic attacks and nightmares, and is very fearful, sad, and angry. Id. The ALJ gave limited to weight to both Mr. Hughes and Ms. Boersma's statements. Tr. 26. E. Psoinos, a Social Security field office staff, observed Plaintiff was nervous and had difficulty with her memory during her application interview. Tr. 260. The ALJ did not address this statement.
First, the ALJ found the lay statements of Mr. Hughes and Ms. Boersma were based on casual observations and not medical evidence. Tr. 26. "[M]edical diagnoses are beyond the competence of lay witnesses and therefore do not constitute competent evidence." Nguyen, 100 F.3d at 1467. However, lay testimony "as to a claimant's symptoms or how an impairment affects ability to work is competent evidence." Id. (emphasis in original). The lay statements addressed lay observations and opinions, and did not include attempts by the lay witnesses to give medical diagnoses or opinions. As such, this was not a germane reason to reject the opinions.
Second, the ALJ found the lay statements restate Plaintiff's subjective complaints, which the ALJ found inconsistent with the evidence. Tr. 26. Where the ALJ gives clear and convincing reasons to reject a claimant's testimony, and where a lay witness's testimony is similar to the claimant's subjective complaints, the reasons given to reject the claimant's testimony are also germane reasons to reject the lay witness testimony. Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009); see also Molina, 674 F.3d at 1114 ("[I]f the ALJ gives germane reasons for rejecting testimony by one witness, the ALJ need only point to those reasons when rejecting similar testimony by a different witness"). As the Court finds the ALJ improperly rejected Plaintiff's symptom complaints, the ALJ may not rely on those same reasons to reject the lay opinion. As such, this was not a germane reason to reject the lay witness opinions.
While the ALJ offered an additional reason to reject the lay opinions of Mr. Hughes and Ms. Boersma, the Court finds the ALJ erred in rejecting the opinions for the reasons discussed supra. On remand, the ALJ is instructed to reconsider the opinions of Mr. Hughes and Ms. Boersma, and incorporate the limitations into the RFC or give germane reasons to reject the opinions. The ALJ is further instructed to consider if E. Psoinos' statement amounts to an opinion, and if so, incorporate the limitations into the RFC or give germane reasons to reject the opinion.
C. Medical Opinion Evidence
Plaintiff contends the ALJ erred in his consideration of the opinion of Michael Aquilino, LMHC. ECF No. 19 at 17-21. "Only physicians and certain other qualified specialists are considered '[a]cceptable medical sources.'" Ghanim, 763 F.3d at 1161 (alteration in original); see 20 C.F.R. §§ 404.1513, 416.913 (2013). However, an ALJ is required to consider evidence from non-acceptable medical sources, such as therapists. 20 C.F.R. §§ 404.1513(d), 416.913(d) (2013). An ALJ may reject the opinion of a non-acceptable medical source by giving reasons germane to the opinion. Ghanim, 763 F.3d at 1161.
The regulation that defines acceptable medical sources is found at 20 C.F.R. §§ 404.1502, 416.902 for claims filed after March 27, 2017. The Court applies the regulation in effect at the time the claim was filed.
The regulation that requires an ALJ's consider opinions from non-acceptable medical sources is found at 20 C.F.R. §§ 404.1502c, 416.920c for claims filed after March 27, 2017. The Court applies the regulation in effect at the time the claim was filed.
On October 30, 2017, Mr. Aquilino completed a questionnaire on Plaintiff's functioning. Tr. 595-97. Mr. Aquilino opined Plaintiff is not limited in her ability to maintain socially appropriate behavior and adhere to basic standards of neatness/cleanliness; moderately limited in her ability to remember locations and work-like procedures, and sustain an ordinary routine without special supervision; markedly limited in her ability to understand and remember very short and simple instructions, carry out very short simple instructions, work in coordination with or proximity to others without being distracted by them, make simple work-related decisions, accept instructions and respond appropriately to criticism from supervisors, get along with coworkers or peers without distracting them or exhibiting behavioral extremes, respond appropriately to changes in the work setting, and set realistic goals or make plans independently of others; and severely limited in her ability to understand and remember detailed instructions, carry out detailed instructions, maintain attention and concentration for extended periods, perform activities within a schedule, maintain regular attendance and be punctual within customary tolerances, complete a normal workday/workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number/length of rest periods, interact appropriately with the general public, ask simple questions or request assistance, be aware of normal hazards and take appropriate precautions, and travel to unfamiliar places or use public transit. Tr. 595-96. Mr. Aquilino further opined Plaintiff has marked limitations in her activities of daily living and extreme limitations in maintaining social functioning and maintaining concentration, persistence or pace, and opined Plaintiff would miss four or more days per month and be off task more than 30 percent of the time if she worked full-time. Tr. 597. The ALJ gave Mr. Aquilino's opinion slight weight. Tr. 24. As Mr. Aquilino is not an acceptable medical source, the ALJ was required to give germane reasons to reject the opinion. See Ghanim, 763 F.3d at 1161.
First, the ALJ found Mr. Aquilino's opinion is inconsistent with the objective evidence. Tr. 24. Relevant factors when evaluating a medical opinion include the amount of relevant evidence that supports the opinion and the consistency of the medical opinion with the record as a whole. Lingenfelter v. Astrue, 504 F.3d 1028, 1042 (9th Cir. 2007); Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). As discussed supra, the ALJ erred in his consideration of the objective medical evidence. As such, this was not a germane reason to reject Mr. Aquilino's opinion.
Second, the ALJ found Mr. Aquilino did not provide an adequate explanation for his opinion, including not explaining how or if he considered Plaintiff's substance abuse and improvement with treatment. Tr. 24. The Social Security regulations "give more weight to opinions that are explained than to those that are not." Holohan, 246 F.3d at 1202. "[T]he ALJ need not accept the opinion of any physician, including a treating physician, if that opinion is brief, conclusory and inadequately supported by clinical findings." Bray, 554 at 1228. While Mr. Aquilino's opinion is not accompanied by an explanation within the questionnaire, the ALJ may not reject an opinion solely because it is a check-box questionnaire when the questionnaire is supported by the treatment records. See Garrison, 759 F.3d at 1014 n. 17. As discussed supra, Mr. Aquilino's records contain multiple abnormal mental status examinations that were not fully addressed by the ALJ. The ALJ also found Mr. Aquilino did not address Plaintiff's functioning when considering whether Plaintiff was continuing substance use or medication use. Tr. 24. However, Mr. Aquilino's questionnaire explicitly stated the opinion addresses Plaintiff's functioning when she is free of alcohol or drug use. Tr. 595. The ALJ noted a provider's familiarity with other evidence, including a claimant's substance abuse, is a relevant factor to consider; Mr. Aquilino's treatment records mention Plaintiff's substance use, demonstrating he is familiar with Plaintiff's use, and the records discuss Plaintiff's use of medication. Tr. 602, 604, 606. This was not a germane reason to reject the opinion.
Third, the ALJ noted Mr. Aquilino is not an acceptable medical source. Tr. 24. The ALJ is required to consider evidence from non-acceptable medical sources. 20 C.F.R. §§ 404.1527, 416.927 (2012). Although an individual's status as a medically acceptable source may impact the amount of deference the ALJ gives to an opinion, the ALJ may not reject an opinion as to a claimant's limitations because the opinion comes from a non-acceptable medical source. 20 C.F.R. §§ 404.1527, 416.927 (2012). The fact that Mr. Aquilino is not an acceptable medical source is not a germane reason to reject the opinion. As such, the ALJ erred in his consideration of Mr. Aquilino's opinion. On remand, the ALJ is instructed to reconsider Mr. Aquilino's opinion and incorporate the limitations into the RFC or give germane reasons to reject the opinion. The ALJ is further instructed to call a psychological expert to assist with determining if Plaintiff's impairments meet or equal a listing and what limitations her impairments cause.
Plaintiff has not argued for an award of immediate benefits, and the Court finds further proceedings are necessary to address conflicting evidence and take expert testimony. As such, the case is remanded for proceedings consistent with this Order.
CONCLUSION
Having reviewed the record and the ALJ's findings, the Court concludes the ALJ's decision is not supported by substantial evidence and is not free of harmful legal error. Accordingly, IT IS HEREBY ORDERED:
1. Plaintiff's Motion for Summary Judgment, ECF No. 19, is GRANTED.
2. Defendant's Motion for Summary Judgment, ECF No. 21, is DENIED.
3. The Clerk's Office shall enter JUDGMENT in favor of Plaintiff REVERSING and REMANDING the matter to the Commissioner of Social Security for further proceedings consistent with this recommendation pursuant to sentence four of 42 U.S.C. § 405(g).
The District Court Executive is directed to file this Order, provide copies to counsel, and CLOSE THE FILE.
DATED August 20, 2020.
s/Mary K . Dimke
MARY K. DIMKE
UNITED STATES MAGISTRATE JUDGE