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Michael S. v. Berryhill

United States District Court, D. Oregon

March 6, 2019

MICHAEL S., [1] Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security Defendant.


          Michael McShane United States District Judge

         Plaintiff Michael S. brings this action for judicial review of the Commissioner of Social Security's (“Commissioner”) decision denying his application for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act (“the Act”). This court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c). For the reasons that follow, the Commissioner's final decision is REVERSED and this matter is REMANDED for further proceedings consistent with this opinion.

         Plaintiff was 37 years old on his alleged onset date and 43 years old at the time of his administrative hearing. Tr. 368, 400.[2] He has a tenth-grade education and, until 2009, had a consistent work history as a carpenter. Tr. 388, 544. In September 2009, Plaintiff was hospitalized for psychosis. Tr. 403, 646. On March 19, 2013, Plaintiff was civilly committed to the Lane County Mental Health Division because he was “suffering from a mental disorder, [and was] a danger to others . . . for a period not to exceed 180 days.” Tr. 508; see also Tr. 646.

         Shortly thereafter, Plaintiff applied for DIB and SSI on March 29, 2013, alleging disability beginning August 6, 2009. Tr. 166. Plaintiff alleged disability due to schizophrenia, psychosis, paranoia, and other functional psychotic disorders. See Tr. 398-99, 400, 410. Both claims were denied initially and upon reconsideration. Tr. 166, 398-99, 420-21. Plaintiff timely requested a hearing before an Administrative Law Judge (“ALJ”) and appeared for a hearing on August 28, 2015. Tr. 166, 360-96. The ALJ denied Plaintiff's applications in a written decision in September 2015. Tr. 166-77. Plaintiff sought review from the Appeals Council, which was denied, rendering the ALJ's decision the final decision of the Commissioner. Plaintiff now seeks judicial review.


         A 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, a court reviews 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).


         The Social Security Administration utilizes a five-step sequential evaluation to determine whether a claimant is disabled. See20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (2012). The burden of proof rests upon the claimant at steps one through four, and with the Commissioner at step five. Id; Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)). At step five, the Commissioner must 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. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If the Commissioner fails to meet this burden, then the claimant is disabled. Id. If, however, the Commissioner proves that the claimant is able to perform other work existing in significant numbers in the national economy, the claimant is not disabled. Id; see also Bustamante, 262 F.3d at 953-54.

         In the present case, the ALJ found that Plaintiff was not disabled. At step one, although the ALJ found that Plaintiff had engaged in substantial gainful activity in 2010 and 2012, there was a continuous 12-month period after 2012 that the ALJ's decision evaluated. Tr. 168-69. At step two, the ALJ found Plaintiffs history of schizophrenia a severe impairment. Tr. 169. At step three, the ALJ found Plaintiff did not have an impairment or combination of impairments that met or equaled the requirements of the listings. Tr. 170; 20 C.F.R. Part 404, Subpart P, Appendix 1.

         Prior to step four, the ALJ determined that Plaintiffs RFC allowed a full range of work at all exertion levels with the following limitations: [Plaintiff] is limited to simple, repetitive, routine tasks that involve no more than occasional interaction with co-workers or the general public. Tr. 171. At step four, the ALJ found that Plaintiff was unable to perform his past relevant work as a carpenter. Tr. 175. At step five, the ALJ found that, based on Plaintiffs age, education, work experience and RFC, jobs existed in significant numbers in the national economy such that Plaintiff could sustain employment despite his impairments. Tr. 176. Specifically, the ALJ found Plaintiff could perform the representative occupations of: mail clerk, Dictionary of Occupational Titles (“DOT”) #209.687-026; information router, DOT #222.587-038; and electronics worker, DOT #726.687-010. Tr. 176. As a result, the ALJ concluded that Plaintiff was not disabled within the meaning of the Act. Tr. 177.

         Plaintiff contends the ALJ erred in four respects. First, he argues the ALJ failed to supply germane reasons for rejecting the opinion of Plaintiff s mental health treatment providers. Pl.'s Op. Br. 6-14. Second, Plaintiff contends the ALJ failed to provide clear and convincing reasons to reject his subjective symptom testimony. Id. at 14-16. Third, Plaintiff asserts the refusal to grant his request for a psychological consult constituted a failure to develop the record. Id. at 16-17. Finally, Plaintiff argues the ALJ failed to meet his burden at step five. Id. at 17-18. I address each contention in turn.

         I. Mental Health Treatment Providers

         Plaintiff first contends that the ALJ improperly discounted the opinion testimony of Bonny Barr, psychiatric-mental health nurse practitioner (“PMHNP”), and Benjamin Yoder, qualified mental health associate (“QMHA”), who co-signed a functional assessment of Plaintiff in July 2015 (the “Barr-Yoder opinion”). See Tr. 1204-13. In the assessment, the mental health professionals diagnosed Plaintiff with schizophrenia and assessed his prognosis as “poor.” Tr. 1212. They further assessed that Plaintiff was, inter alia, markedly limited in his ability to: understand and remember detailed instructions; carry out detailed instructions; maintain concentration for extended periods; perform activities within a schedule and maintain regular attendance; sustain an ordinary routine without special supervision; and complete a normal workday without interruptions from psychologically based symptoms. Tr. 1210-11. Finally, they opined that Plaintiff met the paragraph C criteria of Listing 12.03: Schizophrenic, Paranoid and Other Psychotic Disorders. Tr. 1213; see also 20 C.F.R. § Pt. 404, Subpt. P, App. 1 (effective Aug. 12, 2015 through May 23, 2016).[3] At the hearing, the ALJ conceded that, if accepted, the opinion would compel a finding of disability under the Act. Tr. 393. Ultimately, the ALJ assigned “little weight” to the Barr-Yoder opinion. Tr. 173.

         At the time of the ALJ's decision, the opinions of Plaintiff's mental health providers were considered “other medical sources.” Dale v. Colvin, 823 F.3d 941, 943 (9th Cir. 2016); see also 20 C.F.R. §§ 404.1513(d)(1), 416.913(d)(1) (effective September 3, 2013 through March 26, 2017).[4] “Other Sources” cannot establish the existence of a medically determinable impairment. SSR 06-03p, available at2006 WL 2329939, at *2. However, “depending on the facts of the case . . . an opinion from a medical source who is not an ‘acceptable medical source' may outweigh the opinion of an ‘acceptable medical source,' including the opinion of a treating source.” Id. at *5. An ALJ considers several factors when evaluating the opinion of such sources, including: (1) length of relationship and frequency of contact; (2) consistency with other evidence; (3) quality of the source's explanations; (4) any specialty or expertise related to impairment; and (5) any other factors tending to support or refute the opinion. See SSR 06-03p; 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). An ALJ may nevertheless reject an “other source” opinion if the ALJ provides “germane reasons” for doing so. Lambert v. Colvin, No. 3:16-cv-00512-MC, 2017 WL 3234385, at *3 (D. Or. July 31, 2017) (citing Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996)).

         The ALJ found the Barr-Yoder opinion was “problematic for multiple reasons.”[5] Tr. 173. First, the ALJ took issue with the fact that the opinion's onset date “pre-date[d] the commencement of [Barr and Yoder's] treating relationship by four years.” Id. The ALJ noted that the lack “of firsthand clinical observation” from 2009 to 2013 made “the factual basis for their conclusions” unclear. Tr. 173. The Commissioner argues this was proper because “‘[a]fter the fact' opinions are not reliable.” Def.'s Br. 6 (citing Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984)). However, the Ninth Circuit later clarified that an ALJ may not reject an opinion simply because it assesses limitations prior to the provider's treating relationship. See Lester v. Chater, 81 F.3d 821, 832 n.10 (9th Cir. 1995), as amended (Apr. 9, 1996) (“Vincent . . . does not stand for the proposition that the Commissioner is entitled to reject [an] opinion, merely because the onset date of disability was before the first date on which the psychologist saw the claimant.”). Indeed, Lester explained that the “[d]iagnosis of a claimant's condition can properly, of course, occur after the onset of the impairment.” Id. (citations omitted). Further, the ALJ's rejection of Plaintiff's mental health treatment providers because they did not personally observe Plaintiff from 2009 through 2013 is particularly puzzling given the fact the ALJ assigned “significant weight” to the State agency consultants who never personally observed Plaintiff. See Lester, 81 F.3d at 832 (“the ALJ noted that Dr. Taylor's conclusions were based on ‘limited observation' of the claimant. While this would be a reason to give less weight to Dr. Taylor's opinion than to the opinion of a treating physician, it is not a reason to give preference to the opinion of a doctor who has never examined the claimant.” (emphasis in original)); see also Knight v. Berryhill, 2017 WL 3953950, at *5 (E.D. Cal. Sept. 8, 2017). As such, the fact that a portion of the Barr-Yoder opinion “predated” the mental health professionals' treating relationship was not a germane reason to reject the opinion.

         The ALJ also rejected the Barr-Yoder opinion because past “treatment records did ‘not corroborate the level of psychological disturbance cited by Mr. Yoder and Ms. Barr.'” Def.'s Br. 8 (citing Tr. 173). The ALJ cited a chart note, stating that “[j]ust two months after [Plaintiffs] involuntary commitment, he told a counselor that he believed his medications were ‘helpful.'” Tr. 173 (citing Tr. 810). Significantly, the ALJ's citation is to a chart note not written by either PMHNP Barr or QMHA Yoder. See Tr. 811. Moreover, although Plaintiff did state at the appointment he “believe[d] his medications [had been] helpful, ” an ALJ may not selectively rely on isolated treatment notes; rather, medical opinions “must be read in context of the overall diagnostic picture” they draw. Holohan v. Massanari,246 F.3d 1195, 1205 (9th Cir. 2001) (“That a person . . . makes some improvement does not mean that the person's impairments no longer seriously affect her ability to function in a workplace.”). At the same appointment, Plaintiff also explained “this whole mental health illness thing has been tough over the past couple of years” and that he was “scared” to attempt to “work again after landing in the hospital after going to back to work.” Tr. 810. Indeed, just a week and a half later, QMHA Yoder listed as a treatment goal to “[d]evelop and use a medication regimen . . . [to] decrease the impact of [Plaintiffs] paranoia from ‘severe' to ‘moderate[.]'” Tr. 811 (emphasis added). A longitudinal goal of reducing Plaintiffs paranoia from “severe” to “moderate” over the course of a calendar year does not undermine the conclusions of PMHNP Barr and QMHA Yoder; nor does the other unremarkable treatments notes the ALJ cites. Hawver v. Colvin, No. 3:15-cv-00896-SI, 2016 WL 3360956, at *5 (D. Or. June 10, ...

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