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Reed v. Berryhill

United States District Court, D. Oregon

February 12, 2018

BRANDON REED, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security, Defendant.

          OPINION AND ORDER

          Michael McShane United States District Judge.

         Plaintiff Brandon Reed brings this action for judicial review of the Commissioner's decision denying his application for supplemental security income (SSI). This Court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3).

         Reed, now 23 years old, has no physical limitations. The question is whether Reed's mental impairments preclude him from sustaining employment in any job with simple, routine tasks as of April 16, 2013. After two hearings, the administrative law judge (ALJ) determined Reed is not disabled. Tr. 28.[1] Because the ALJ erred in rejecting the opinions of the examining psychologists, the Commissioner's decision is REVERSED and this matter is remanded for calculation of benefits.

         BACKGROUND

         Throughout his academic career, Reed has required special assistance. Even prior to kindergarten, Reed received special education services. Tr. 556. His mental limitations required him to repeat the first grade three times. Tr. 546. By high school, Reed had fallen even further behind. In the 9th grade, despite earning an A in physical education, Reed could achieve only a 1.64 GPA. Tr. 306. In the 10th grade, with no PE class to boost his GPA, Reed could only manage a 1.29 GPA. Tr. 306. Reed transferred to a school for students with special educational needs, and continued his path to receiving a modified diploma with the aid of an Individualized Education Program (IEP).[2] With significant accommodations and extra assistance provided by the school under the IEP, Reed received a modified diploma on April 15, 2013, two months shy of his 20th birthday.

         After being found disabled as a child as of June 1, 2000, Reed received SSI through April 15, 2013, the day he received his modified diploma. Under the regulations, Reed had to be reevaluated for SSI upon graduating from high school. Therefore, Reed need only demonstrate he was disabled at some point between April 16, 2013, the day after he graduated, and November 26, 2014, the date of the ALJ's decision.

         Reed took part in several psychological examinations as part of his reevaluation for SSI. Dr. Jane Starbird conducted the first evaluation in September 2011. Tr. 449.[3] Dr. Starbird commented on Reed's symptoms but did not offer an opinion as to Reed's mental Residual Functional Capacity (RFC). Later that month, reviewing psychologists formulated Reed's mental RFC based on Dr. Starbird's evaluation, Reed's school records, and lay witness testimony. Tr. 454, 468.

         One year later, two examining psychologists and a treatment provider proffered opinions that suggested Mr. Reed's limitations were greater than those put forth by the reviewing psychologists. Dr. Karla Causeya examined Reed and formulated a mental RFC based on her own examination, as well as the evidence considered by the reviewing psychologists. Tr. 498-511. Daniel Donohue, a mental health therapist who treated Reed for nearly a year, wrote a letter describing Reed's symptoms and limitations as of August 2012. Tr. 514. In November 2012, Dr. William Sack examined Reed, agreeing completely with Dr. Causeya's “excellent report.” Tr. 523.

         Everyone agrees Reed suffers from pervasive developmental disorder and borderline intellectual functioning. The ALJ concluded Reed could perform a full range of work given that the work require only simple, routine tasks, and that Reed only have incidental public contact and only occasionally engage in teamwork. Tr. 23. In reaching that determination, the ALJ gave great weight to the reviewing psychologists' opinions, and little weight to Dr. Causeya's opinion. After the ALJ issued the decision finding Reed not disabled, Reed submitted a December 2014 evaluation from yet another examining psychologist, Dr. Caleb Burns. Tr. 649-661. Like Dr. Sack, Dr. Burns fully endorsed Dr. Causeya's opinions. Tr. 661.[4] Notably, only the reviewing psychologists offered a mental RFC suggesting Reed was capable of sustaining employment for any length of time.

         The issue here is whether the ALJ provided specific and legitimate reasons, supported by substantial evidence in the record, for rejecting Dr. Causeya's limitations. As discussed below, the ALJ erred in not giving Dr. Causeya's opinion controlling weight. Because that opinion- which is supported by the opinion of every other psychologist who later examined Reed- establishes that Reed is disabled under the act, this matter is remanded for an award of benefits.

         STANDARD OF REVIEW

         The reviewing court shall affirm the Commissioner's decision if the decision is based on proper legal standards and the legal findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). “Substantial evidence is ‘more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)). To determine whether substantial evidence exists, we review the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusion. Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989). “If the evidence can reasonably support either affirming or reversing, ‘the reviewing court may not substitute its judgment' for that of the Commissioner.” Gutierrez v. Comm'r of Soc. Sec. Admin., 740 F.3d 519, 523 (9th Cir. 2014) (quoting Reddick v. Chater, 157 F.3d 715, 720-21 (9th Cir. 1996)).

         DISCUSSION

         The Social Security Administration utilizes a five step sequential evaluation to determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520 & 416.920 (2012). The initial burden of proof rests upon the claimant to meet the first four steps. If claimant satisfies his or her burden with respect to the first four steps, the burden shifts to the Commissioner for step five. 20 C.F.R. § 404.1520. At step five, the Commissioner's burden is to demonstrate that the claimant is capable of making an adjustment to other work after considering the claimant's residual functional capacity (RFC), age, education, and work experience. Id.

         The ALJ found Reed had the RFC to perform a full range of work at all exertional levels, but with the following nonexertional limitations: that Reed perform only simple, routine tasks and have only incidental public contact, and only occasionally engage in teamwork. Tr. 23. In making that finding, the ALJ relied heavily on the opinions of the reviewing psychologists:

The State agency psychologist consultants' opinion that the claimant would perform simple tasks with limited public contact is given significant weight because it is consistent with the evidence of record, including cognitive testing and school reports, as well as the claimant's documented activities that include writing, music, spending time at the mall with friends, and household chores.

Tr. 26 (internal citations omitted).

         Dr. Causeya, who examined Reed after the reviewing psychologists formulated their opinions, came to a different conclusion. As relevant here, Dr. Causeya opined Reed would have moderately severe limitations with the following: maintaining attention and concentration for at least two straight hours with at least four such sessions in a workday; sustaining an ordinary routine without special supervision; working in coordination with or proximity to others without being distracted; and completing a normal workday without interruptions from psychologically based symptoms and performing at a constant pace without an unreasonable number and length of rests. Tr. 510. “Moderately Severe” limitations indicate that while the activity is not totally precluded, it can be engaged only occasionally during the eight-hour work day; i.e., for no more than two total hours each work day. Tr. 509. The question is whether the ALJ erred in according more weight to the reviewing psychologists' opinions than to Dr. Causeya's opinion.

         Where there exists conflicting medical evidence, the ALJ is charged with determining credibility and resolving any conflicts. Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012). “If a treating or examining doctor's opinion is contradicted by another doctor's opinion, an ALJ may only reject it by providing specific and legitimate reasons that are supported by substantial evidence. . . .” Id. (quoting Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). Generally, a treating doctor's opinion is entitled to more weight than an examining doctor's opinion, which in turn is entitled to more weight than a reviewing doctor's opinion. Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014).

         Everyone agrees Reed has severe impairments. The issue is whether he can perform simple tasks day in and day out. There is a reason the regulations require that, all things being equal, opinions of examining doctors are generally entitled to more weight than those of reviewing doctors. This is especially true in cases turning solely on a claimant's mental impairments. Of those who formulated a mental RFC for Reed, Dr. Causeya was the only one to sit down and conduct an in-person examination with Reed. The examining psychologists, with the possible exception of Dr. Starbird, each agreed Reed would be unable to hold down a job, even one where he only dealt with simple tasks. Those examining psychologists' opinions as to Reed's mental limitations are, by far, the best evidence available as to what exactly Reed is capable of. In studying the reports of the psychologists, the transcripts of the hearings, and Reed's educational records, it becomes clear that substantial evidence does not support the ALJ's decision giving great weight to the reviewing psychologists' opinions that Reed can perform simple, routine work. I turn first to Dr. Causeya's report.

         In forming her remarkably detailed, 11-page report, Dr. Causeya ran Reed through a battery of tests, and supplemented those results with her own observations of Reed, along with interviews of Reed's mother and grandfather. Tr. 499. Dr. Causeya administered the following tests: Wechsler Adult Intelligence Scales, fourth addition (WAIS); Adaptive Behavior Assessment System, second addition; Wide Range Achievement Test, fourth addition; Blue Word Reading List; Color Trails Test; PHQ-9 Patient Depression Questionnaire; and Test of Memory Malingering. Tr. 499.[5] During her interview, Reed's mother reported several things: although Reed spoke of writing music and forming a band, his mother never met any potential band members and did not think Reed ever met with any band members; Reed seldom left the house alone, or even rode the bus, for fear of being assaulted or killed; Reed's only real acquaintances were family members; and Reed spent most of his time isolating on the computer. Tr. 450. Reed's mother confirmed that Reed never developed typical friendships and that the few acquaintances Reed brought to the house ended up stealing Reed's belongings or coercing Reed into simply giving away his belongings. Tr. 501.

         Dr. Causeya noted Reed had a “Marked impairment in the ability to initiate or sustain a conversation with others. (Brandon will initiate a conversation; however, he is unable to sustain a conversation and stops abruptly or jumps to another topic without taking into consideration the person he is talking with.)” Tr. 501. Although Reed cooperated with the interview, “his responses were quite simple and lacking in content.” Tr. 502. Reed exhibited limited interpersonal skills and eye contact, which were not age appropriate. Tr. 502. As discussed below, other psychologists would make identical observations. Reed's activity level during the interview was unremarkable and, in an observation that becomes even clearer after reading the transcripts, school records, and other examining reports, Reed often “would make statements which sounded more like a cliché, or something he had heard someone else say, rather than being authentically his own. For example, he would say things such as, ‘I like to do things that get me motivated and inspired.'” Tr. 502. These clichés, or perhaps a lack of insight, or simply a desire to say anything at all, appear to be a recurring theme with Reed. For example, unable to perform subtraction of serial threes, Reed told Dr. Causeya, “I like to do it in my head.” Tr. 502.

         There is ample-and overwhelming-evidence demonstrating Reed lacked the ability to construct realistic goals. Reed wanted to start a clothing line, but had no experience being employed, let alone running a business, and produced only vague responses to Dr. Causeya's questions about what sort of clothes he would develop. Tr. 500. Reed expressed an interest in becoming involved in famous art exhibits or working in the music business. Tr. 500. Despite telling Dr. Causeya he had written over 200 songs, Reed was unable, when prompted, to recite a single lyric of any of his alleged songs. Tr. 500.[6] Much more likely is the probability that while Reed dreamed of writing songs, opening a clothing business, or working in the art world, his impairments prevented him from realizing how far these dreams were from reality.

         Even seemingly simple things proved too much for Reed. While he knew the date and could name the president, he could not recall either Dr. Causeya's name or the area of the city her office was located. Tr. 502. The ideas he expressed were uniformly simple in complexity, and Reed was quite limited in his ability to expound on presented hypotheticals.

For example, when asked what he would do in an emergency fire scenario he responded that he would go to the nearest exits. He did not express any awareness for the safety of others. When asked what he would do if he found a stamped, addressed envelope, lying on the sidewalk, he stated that he would find the address, and ask for directions. . . . When asked what the saying meant, “Don't count your chickens before they're hatched, ” he replied that he did not know.

Tr. 502.

         Dr. Causeya clearly reviewed Reed's school records, writing “Notes from his teachers at school indicated that he relies on others to guide him through his assignments and does not function at school independently.” Tr. 503. Importantly, Dr. Causeya noted, “Brandon's appearance is adequate, although his ability to interact socially is limited.” Tr. 503. One suspects the ALJ looked at Reed's normal appearance, listened to Reed's remarkably frank (if entirely unrealistic) testimony at the hearings, and simply determined Reed was not disabled. Perhaps Reed's mother put it best when she told Dr. Burns, “When they had a Social Security hearing for him, they went by what he said he could do, but he was saying he could do things that he can't.” Tr. 657. At the hearing, the ALJ inquired as to why Reed had not looked for a single job since graduating several months earlier:

Q: I guess I don't understand why you haven't tried to find one? Just don't need the money?
A: Just-I just think like it's not any good jobs that I really want at the moment.
Q. What jobs would you want?
A: Like a job where I can work with like musicians and like music producers ...

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