Lisa Y. v. Comm'r of Soc. Sec.

570 F.Supp.3d 993

LISA Y., Plaintiff,

v.COMMISSIONER OF SOCIAL SECURITY, Defendant.

CASE NO. C21-5207-BAT

United States District Court, W.D. Washington, at Seattle.

Signed November 8, 2021

Elie Halpern, Halpern Olivares PLLC, Olympia, WA, for Plaintiff.

Kerry Jane Keefe, US Attorney's Office, Joseph John Langkamer, Sarah E. Moum, Social Security Administration, Seattle, WA, for Defendant.

ORDER REVERSING AND REMANDING THE CASE FOR FURTHER PROCEEDINGS

BRIAN A. TSUCHIDA, United States Magistrate Judge

Plaintiff appeals the ALJ's decision finding her not disabled. She contends the ALJ erroneously rejected her testimony, and the opinions of Kimberly Wheeler, Ph.D., Margaret Cunningham, Ph.D., and Benjamin Goold, M.D. Dkt. 14. Plaintiff also contends the Court should remand the case for further proceedings because the removal provision contained in 42 U.S.C. § 902(a)(3) violates separation of powers. Id.

The Court finds the ALJ harmfully erred in discounting Dr. Goold's opinions regarding Plaintiff's physical limitations and rejecting Plaintiff's testimony regarding her physical limitations. The Court further finds the ALJ did not harmfully err in discounting Plaintiff's testimony about the severity of her mental health symptoms, and the opinions of Drs. Wheeler and Cunningham, and affirms the ALJ's determinations in this regard. While the ALJ's erroneous decision to discount Dr. Goold's opinion provides the Court a basis to avoid addressing the separation of powers argument, the Court also addresses the Constitutional issue because it is an important and recurring issue that has been raised in numerous other cases and should thus be resolved. As discussed below, the Court concludes separation of powers is not a basis to remand this case. Accordingly, for the reasons below, the Court REVERSES the Commissioner's final decision and REMAND S the case for further proceedings under 42 U.S.C. 405(g).

BACKGROUND

Plaintiff is 43 years old, has at least a high school education, and has worked as a gas station attendant, stock clerk, and cashier checker. Tr. 1461–62. In September 2014, she applied for benefits, alleging disability as of April 1, 2014. Tr. 361–66, 1438. Her applications were denied initially and on reconsideration. Tr. 209–37, 240–69. On August 22, 2016, ALJ Kimberly Boyce held a hearing at Plaintiff's request. Tr. 173–206. On November 2, 2016, ALJ Boyce issued a decision finding Plaintiff not disabled. Tr. 26–43. The Appeals Council denied Plaintiff's request for review. Tr. 1–4.

Plaintiff sought review of ALJ Boyce's decision before this Court. Tr. 1611–13. On June 5, 2019, United States Magistrate Judge J. Richard Creatura issued an order reversing the ALJ's decision. Tr. 1637–53. Judge Creatura held the ALJ erroneously rejected the opinions of examining psychologists, Dr. Wheeler and Dr. Cunningham, and two reviewing psychologists in favor of opinions from non-examining medical consultants. Tr. 1637.

On remand, ALJ Allen Erickson held a hearing on November 19, 2020. Tr. 1476–1549. ALJ Erickson issued a decision on January 13, 2021, again finding Plaintiff not disabled. Tr. 1438–63. The ALJ found Plaintiff lumbar spine congenital stenosis and degenerative disc disease, major depressive disorder, generalized anxiety disorder, and posttraumatic stress disorder ("PTSD") are severe impairments; Plaintiff has the residual functional capacity ("RFC") to perform light work with additional postural, environmental, cognitive, adaptive, and social limitations; and Plaintiff can perform jobs in significant numbers in the national economy. Tr. 1441-1463. The Appeals Council did not assume jurisdiction, making the ALJ's decision the Commissioner's final decision. See 20 C.F.R. §§ 404.984(d), 416.1484(d).

DISCUSSION

A. Plaintiff's Testimony

Plaintiff contends the ALJ erroneously discounted her testimony she cannot work because of major back problems, hand, knee, and back arthritis, anxiety, depression, PTSD, and migraines. Tr. 181, 403, 410, 1495, 1917. Plaintiff testified she can stand, walk, and sit for a limited amount of time, see Tr. 196–97, 1528, 1960, 1965, and could lift up to 10 pounds. Tr. 408. Plaintiff testified she has a hard time holding things because of pain in her hand. Tr. 1530. Plaintiff also testified she has anxiety, claustrophobia, difficulty concentrating, and PTSD, Tr. 186, 1532, 1536, and has anxiety attacks about four times a week. Tr. 194. She testified she gets migraines about once a week and must lay down in a dark room. Tr. 191, 1502, 1525.

Because the ALJ found Plaintiff presented objective medical evidence establishing underlying impairments that could cause the symptoms alleged, and no affirmative evidence of malingering, the ALJ was required to provide "specific, clear, and convincing" reasons supported by substantial evidence to discount Plaintiff's testimony as to symptom severity. Trevizo v. Berryhill , 871 F.3d 664, 678 (9th Cir. 2017).

The ALJ rejected Plaintiff's testimony about her physical limitations symptoms noting imaging of spine and joints showed mostly mild to moderate abnormalities, Tr. 792, 840, 842, 874, 1019–20, 1447, 2134, 2154, 2345, and that Plaintiff's exams were mostly normal. See, e.g. , Tr. 589–90, 607, 630, 651, 2133–34. These records do not preclude Plaintiff's pain complaints. Rather Plaintiff's treatment record documents consistent and long-standing pain complaints that her doctors did not find unjustified and which they attempted to treat in various ways including the use of narcotic pain medications. Although pain medications provided Plaintiff some relief, the medications did not provide as much as the ALJ determined. The Court notes the ALJ stated the mild to moderate imaging results are inconsistent with Plaintiff's testimony. But this is a conclusory finding not supported by a medical opinion. Tr. 1447. This conclusory finding is also at odds with the ALJ's determination Plaintiff's impairment could reasonably be expected to cause some degree of the alleged symptoms. Tr. 1445. The Court thus concludes substantial evidence does not support the ALJ's conclusion that the imaging results or exam results contradict Plaintiff's testimony about the impact of her pain on her functioning.

The ALJ further noted Plaintiff declined treatment such as a cortisone injection in her right knee because "she states the pain is not bad enough to warrant a cortisone injection." Tr. 2135. This one-time declination does not contradict Plaintiff's testimony that she has suffered significant pain symptoms in other parts of her body for many years. Also, Plaintiff made this statement during an examination in May 2018 focusing just on knee pain. This medical record documents Plaintiff in fact had knee pain complaints and the medical source did not indicate Plaintiff's declination of the cortisone shot established otherwise or that Plaintiff was overstating her pain complaints.

The ALJ also erred in discounting Plaintiff's testimony on the grounds she received only conservative treatment given her long use of hydrocodone. See Kager v. Astrue , 256 F. App'x 919, 923 (9th Cir. 2007) (holding the ALJ erred in finding plaintiff had not received significant pain therapy when she was taking narcotic pain medications).

Turning to Plaintiff's mental impairment testimony, the ALJ reasonably found Plaintiff's claims were inconsistent with the overall medical evidence. The ALJ cited to numerous potions of the record to support his conclusion that "while treatment providers have occasionally found the claimant to have some level of impaired mental health functioning, many found her to be mentally oriented and to demonstrate generally intact mental health functioning." Tr. 1448. Plaintiff has failed to show harmful error in the ALJ's rejection of her testimony. See Ludwig v. Astrue , 681 F.3d 1047, 1054 (9th Cir. 2012) (citing Shinseki v. Sanders , 556 U.S. 396, 407–09, 129 S.Ct. 1696, 173 L.Ed.2d 532 (2009) ) (party challenging an administrative decision bears the burden of proving harmful error). Plaintiff has failed to show this was an unreasonable assessment of the record.

The ALJ gave other reasons to reject Plaintiff's testimony about her mental health limitations that do not withstand scrutiny. But because the ALJ gave at least one valid reason for rejecting Plaintiff's testimony, the inclusion of erroneous reasons is harmless. Molina v. Astrue , 674 F.3d 1104, 1115 (9th Cir. 2012) (quoting Carmickle v. Comm'r, Soc. Sec. Admin. , 533 F.3d 1155, 1162 (9th Cir. 2008) ).

B. Dr. Wheeler's Opinions

Plaintiff contends the ALJ erroneously rejected the opinions of examining psychologist Dr. Wheeler. An ALJ must provide "specific and legitimate reasons that are supported by substantial evidence in the record" to reject the opinion of an examining doctor when it is contradicted. Lester v. Chater , 81 F.3d 821, 830–31 (9th Cir. 1996) (citing Andrews v. Shalala , 53 F.3d 1035, 1043 (9th Cir. 1995) ). Dr. Wheeler's opinions were contradicted by the opinions of John Robinson, Ph.D., and Eugene Kester, M.D. See Tr. 218–20, 249–51.

Dr. Wheeler evaluated Plaintiff on September 18, 2015, Tr. 939–43 and opined Plaintiff was markedly limited in her ability to understand, remember, and persist in tasks by following detailed instructions, communicate and perform effectively in a work setting, and complete a normal workday or week without interruptions from her psychologically based symptoms. Tr. 941.

The ALJ gave Dr. Wheeler's opinions little weight. Tr. 1459. The ALJ reasoned Plaintiff's presentation during Dr. Wheeler's exam was inconsistent with her presentation at other exams throughout the record, Dr. Wheeler's opinions were inconsistent with the overall medical evidence, and Dr. Wheeler's opinions were inconsistent with Plaintiff's activities of daily living. Tr. 1459–60.

The ALJ did not harmfully err in rejecting Dr. Wheeler's opinions. The ALJ reasonably concluded Dr. Wheeler's opinions were inconsistent with the...