Opinion
CV 21-00185-TUC-JGZ (LAB)
07-23-2022
Levi Nivison, Plaintiff, v. Commissioner of Social Security Administration,' Defendant.
REPORT AND RECOMMENDATION
Leslie A. Bowman United States Magistrate Judge
The plaintiff, Levi Nivison, filed this action for review of the final decision of the Commissioner for Social Security pursuant to 42 U.S.C. § 405(g). (Doc. 1, p. 1)
The case has been referred to the United States Magistrate Judge pursuant to the Rules of Practice of this court for a report and recommendation. (Doc. 13); LRCiv 72.2(a)(10)
The Magistrate Judge recommends that the District Court, after its independent review, reverse the final decision of the Commissioner. The Administrative Law Judge's evaluation of the opinion of the consulting examining psychologist is not supported by substantial evidence.
PROCEDURAL HISTORY
On March 23, 2018, Nivison filed an application for disability insurance benefits. (Doc. 20-3, p. 14) He alleged disability, beginning on January 1, 2016, due to depression, pain in both knees, PTSD (post-traumatic stress disorder), tinnitus, and hemorrhoids. Id.; (Doc. 20-7, pp. 3, 10)
Nivison's application was denied initially and upon reconsideration. (Doc. 20-3, p. 14) He requested review and appeared with counsel at a hearing before Administrative Law Judge (ALJ) Peter J. Baum on July 27, 2020. (Doc. 20-3, p. 28)
At the hearing, Nivison discussed his past work experience. He explained that he served in the military as a striker vehicle mechanic. (Doc. 20-3, pp. 42-43) He also worked at a gun range as a combined cashier, salesman, and safety monitor. Id.
Since his alleged disability onset, Nivison worked briefly as an auto parts salesman and as a maintenance worker. (Doc. 20-3, pp. 30-31) He quit his sales job because he was not getting along with the management. (Doc. 20-3, p. 31) He quit his maintenance job because it hurt his knees too much. Id.
Nivison currently receives an eighty percent disability pension from the Veterans Affairs. (Doc. 20-3, p. 32) He testified that he cannot work now because of “my mental state with my PTSD and depression. . . .” (Doc. 20-3, p. 34) He explained, “I just - I wouldn't be getting along with people at that point.” Id. “I talk back, I act out . . . [i]t just - I know - I know for a fact it wouldn't work.” Id.
Nivison explained that he does not socialize anymore. (Doc. 20-3, p. 37) He does, however, communicate with an army friend he found on Facebook. Id. He takes trazodone to help him sleep. (Doc. 20-3, p. 38) He still has nightmares despite his medication. (Doc. 20-3, p. 39)
On August 26, 2020, ALJ Baum issued his decision in which he found at step two of the disability analysis that Nivison was not disabled because he did not have a severe impairment through his date last insured. (Doc. 20-3, pp. 17-20) Nivison requested review, but on March 19, 2021, the Appeals Council denied review making the decision of the ALJ the final decision of the Commissioner. (Doc. 20-3, p. 2) He subsequently filed this action appealing that final decision. (Doc. 1)
Medical Opinions: Physical
In July of 2018, Nivison was examined by Marko Perovic, M.D., for the disability determination services. (Doc. 20-17, pp. 183-193) Perovic found that Nivison has no exertional or postural limitations. (Doc. 20-17, p. 192) He has mild limitations in communicating due to his PTSD and mild environmental limitations due to his tinnitus. Id.
Also in July of 2018, John B. Kurtin, M.D., reviewed the medical record for the state disability determination services. (Doc. 20-4, pp. 13-14) Kurtin found that Nivison's knee pain, hearing loss, and hemorrhoids are non-severe impairments. Id.
In November of 2018, M. Ormsby, M.D., reviewed the medical record on reconsideration. (Doc. 20-4, pp. 26-27) He affirmed Kurtin's previous conclusions. Id.
Medical Opinions: Psychological
In July of 2018, Nivison was given a psychological evaluation by Noelle Rohen, Ph.D., for the disability determination services. (Doc. 20-17, pp. 195-199) Rohen diagnosed “unspecified trauma- and other stressor-related disorder” and “unspecified depressive disorder.” (Doc. 20-17, p. 198) Rohen completed a Psychological/Psychiatric Medical Source Statement. (Doc. 20-17, p. 199) Under the heading “Sustained Concentration and Persistence,” Rohen stated as follows: “Claimant relates that he has difficulty maintaining focus and engagement in jobs that have involved crowds or chaos, because of anxiety related to service deployments.” Id., (AR 1226) “He notes that doing jobs resembling what he did in the military has brought unwelcome familiarity of experience/symptoms, and has truncated his tenure.” Id. She opined that Nivison's conditions will impose limitations for 12 months. (Doc. 20-17, p. 199)
In August of 2018, Andres Kerns, Ph.D., reviewed the medical record for the state disability determination services. (Doc. 20-4, pp. 14-15) He considered Nivison's diagnoses for Depressive, Bipolar, and Related Disorders, Listing 12.04, and Trauma and Stressor-Related Disorders, Listing 12.15. Id. He opined that Nivison has mild impairment in his ability to understand, remember, or apply information; interact with others; concentrate, persist, or maintain pace; and adapt or manage oneself. Id., (AR 59)
In November of 2018, Kevin Gregg, M.D., reviewed the medical record on reconsideration. (Doc. 20-4, pp. 26-28) He affirmed Kerns's previous conclusions. Id.
CLAIM EVALUATION
To qualify for disability benefits, the claimant must demonstrate, through medically acceptable clinical or laboratory standards, an inability to engage in substantial gainful activity due to a physical or mental impairment that can be expected to last for a continuous period of at least twelve months. 42 U.S.C. § 423(d)(1)(A). “An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are 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, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him or whether he would be hired if he applied for work.” 42 U.S.C. § 423(d)(2)(A).
Social Security Administration (SSA) regulations require that disability claims be evaluated pursuant to a five-step sequential process. 20 C.F.R. § 404.1520. The first step requires a determination of whether the claimant is engaged in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4). If so, then the claimant is not disabled and benefits are denied. Id.
If the claimant is not engaged in substantial gainful activity, the ALJ proceeds to step two, which requires a determination of whether the claimant has a severe impairment or combination of impairments. 20 C.F.R. § 404.1520(a)(4). In making a determination at step two, the ALJ uses medical evidence to evaluate whether the claimant has an impairment that “significantly” limits or restricts his or her physical or mental ability to do basic work activities. 20 C.F.R. § 404.1520(c). If the ALJ concludes there is no severe impairment, the claim is denied. 20 C.F.R. § 404.1520(a)(4).
Upon a finding of severity, the ALJ proceeds to step three, which requires a determination of whether the impairment meets or equals one of several listed impairments that the Commissioner acknowledges are so limiting as to preclude substantial gainful activity. 20 C.F.R. § 404.1520(a)(4); 20 C.F.R. Pt. 404, Subpt. P, App.1. If the claimant's impairment meets or equals one of the listed impairments, then the claimant is presumed to be disabled, and no further inquiry is necessary. If the claimant's impairment does not meet or equal a listed impairment, evaluation proceeds to the next step.
The fourth step requires the ALJ to consider whether the claimant has sufficient residual functional capacity (RFC) to perform past relevant work. 20 C.F.R. § 404.1520(a)(4). If yes, then the claim is denied. Id. If the claimant cannot perform any past relevant work, then the ALJ must move to the fifth step, which requires consideration of the claimant's RFC to perform other substantial gainful work in the national economy in view of the claimant's age, education, and work experience. 20 C.F.R. § 404.1520(a)(4).
Residual functional capacity is defined as that which an individual can still do despite his or her limitations. 20 C.F.R. § 404.1545.
The ALJ's Findings
At step one of the disability analysis, the ALJ found that Nivison “did not engage in substantial gainful activity during the period from his alleged onset date of January 1, 2016 through his date last insured of March 31, 2020 . . . .” (Doc. 20-3, p. 16) At step two, he found Nivison “had the following medically determinable impairments: depression, PTSD [post-traumatic stress disorder], hemorrhoids, tinnitus, and knee disorder . . . .” (Doc. 20-3, p. 17)
The ALJ then considered the four functional areas that, according to the social security regulations, should be evaluated when assessing mental disorders. “These four broad functional areas are known as the ‘paragraph B' criteria.” (Doc. 20-3, p. 19) First, the ALJ found that Nivison has mild limitation in the area of “understanding, remembering or applying information.” Id. Next, he found that Nivison has mild limitation in interacting with others. Id. Third, the ALJ considered the area of “concentrating, persisting or maintaining pace.” Id. He found that Nivison has mild limitation in this area. Id. Finally, the ALJ decided that Nivison has mild limitation in the area of “adapting or managing oneself.” Id.
The ALJ found that “[b]ecause the claimant's medically determinable mental impairments caused no more than ‘mild' limitation in any of the functional areas and the evidence does not otherwise indicate that there is more than a minimal limitation in the claimant's ability to do basic work activities, they were nonsevere. . . .” Id.
The ALJ further found that Nivison “did not have an impairment or combination of impairments that significantly limited the ability to perform basic work-related activities for 12 consecutive months; therefore, the claimant did not have a severe impairment or combination of impairments . . . .” (Doc. 20-3, p. 17)
He concluded that Nivison “was not under a disability, as defined in the Social Security Act, at any time from . . . the alleged onset date, through . . . the date last insured. . . .” (Doc. 20-3, p. 20)
STANDARD OF REVIEW
The findings of the Commissioner are meant to be conclusive. 42 U.S.C. § 405(g). The decision to deny benefits “should be upheld unless it contains legal error or is not supported by substantial evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. It is “more than a mere scintilla but less than a preponderance.” Id.
“Where evidence is susceptible to more than one rational interpretation, the [Commissioner's] decision should be upheld.” Orn, 495 F.3d at 630. “However, a reviewing court must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence.” Id.
The Commissioner need not accept the claimant's subjective testimony of disability, but if she decides to reject it, she must justify her decision. Valentine v. Comm 'r Soc. Sec. Admin., 574 F.3d 685, 693 (9th Cir. 2009). “[W]ithout affirmative evidence showing that the claimant is malingering, the Commissioner's reasons for rejecting the claimant's testimony must be clear and convincing.” Id.
Discussion
Nivison argues first that the ALJ failed to properly analyze the opinion of the consulting examiner, Noelle Rohen, Ph.D. (Doc. 23, pp. 5-8) The court agrees and recommends that this case be remanded for further proceedings. The court does not reach Nivison's alternate allegations of error.
Under the new regulations, “[t]he agency must “articulate how persuasive it finds all of the medical opinions from each doctor or other source, 20 C.F.R. § 404.1520c(b), and explain how it considered the supportability and consistency factors in reaching these findings.” Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022) (punctuation modified). “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.” Machelle H. v. Kijakazi, No. 1:20-CV-00357-CWD, 2021 WL 4342313, at *7 (D. Idaho Sept. 22, 2021) (punctuation modified). “In sum, the [ALJ] must explain his reasoning and specifically address how he considered the supportability and consistency of the opinion, and his reasoning must be free from legal error and supported by substantial evidence.” Id. The court finds that the ALJ's analysis of the medical opinion supplied by Noelle Rohen, Ph. D., is not supported by substantial evidence. (Doc. 20-17, pp. 195-199)
Rohen performed a consultative examination of Nivison and diagnosed “unspecified trauma- and other stressor-related disorder” and “unspecified depressive disorder.” (Doc. 2017, p. 198) She also completed a Psychological/Psychiatric Medical Source Statement. (Doc. 20-17, p. 199) She opined that Nivison's conditions will impose limitations for 12 months. (Doc. 20-17, p. 199) Under the heading “Sustained Concentration and Persistence,” Rohen stated that Nivison's concentration was “[a]dequate for today's demands.” Id. She stated more specifically as follows: “Claimant relates that he has difficulty maintaining focus and engagement in jobs that have involved crowds or chaos, because of anxiety related to service deployments.” Id., (AR 1226) “He notes that doing jobs resembling what he did in the military has brought unwelcome familiarity of experience/symptoms, and has truncated his tenure.” Id. “Depressive amotivation is said to have also limited his persistence at work.” Id. “Writer cannot objectively verify.” Id.
The ALJ's analysis of the medical opinion evidence reads as follows:
The undersigned considered the opinions of the state agency medical consultants and consultive examiners who all determined the claimant's impairments to be nonsevere (2A; 2A; 21F; 22F). [Rohen's examination is Exhibit 22F.] These opinions are persuasive, as they are consistent with the overall treatment evidence noting largely normal examination findings. These opinions are also supported by the objective medical imaging finding no abnormalities of the knees. (20F).(Doc. 20-3, pp. 19-20) The ALJ's analysis of Rohen's consultative examination is not supported by substantial evidence.
First, and most importantly, the ALJ mischaracterized Rohen's opinion when he stated that she, like the other medical consultants and consultive examiners, “determined the claimant's impairments to be nonsevere.” (Doc. 20-3, pp. 19-20) She did not say that. In fact, Rohen stated explicitly that Nivison's “condition(s) . . . will impose limitations for 12 months.” (Doc. 20-17, p. 199) She elaborated on those limitations by stating that Nivison “has difficulty maintaining focus and engagement in jobs that have involved crowds or chaos, because of anxiety related to service deployments.” Id., (AR 1226) Moreover, she recognized that “[d]epressive amotivation is said to have also limited his persistence at work.” Id. It appears that Rohen believes that Nivison has a severe impairment that affects his ability to sustain concentration and pace. See also Sarah G. v. Saul, 2020 WL 1915890, at *4 (E.D. Wash. 2020) (citing Social Security Ruling (SSR) 85-28 at *3) (“An impairment is non-severe if medical evidence establishes only a slight abnormality or a combination of slight abnormalities which would have no more than a minimal effect on an individual's ability to work.”). The ALJ does not have to accept Rohen's opinion of course, but if he chooses to reject it, he must explain why he finds it unpersuasive in accordance with the new regulations.
The ALJ further stated that Rohen's opinion was “persuasive” because it is “consistent with the overall treatment evidence noting largely normal examination findings.” It is unclear what this statement means in light of the ALJ's mischaracterization of Rohen's apparent finding that Nivison has a severe impairment. Suffice it to say, this statement also fails to properly comply with the requirement in the new regulations to consider the supportability and consistency of each medical opinion.
The court further notes that a phrase such as “largely normal examination findings” has limited applicability where the claimant alleges a mental impairment. (Doc. 20-3, pp. 19-20) Psychiatric impairments are, by their nature, different from physical ailments. They are not amenable to objective verification. See Poulin v. Bowen, 817 F.2d 865, 873 (D.C.Cir. 1987) (“[U]nlike a broken arm, a mind cannot be x-rayed . . . .”). Rohen apparently found no contradiction between her “largely normal examination findings” and her conclusion that Nivison's condition will impose limitations for at least 12 months.
The Commissioner argues to the contrary that “[t]he ALJ reasonably interpreted Dr. Rohen's opinion to mean that Plaintiff did not have severe mental impairments, and this is consistent with Dr. Rohen's opining no limitations, or mild limitations at most, in her opinion.” (Doc. 26, p. 8) The court does not agree. Rohen described what she believed were Nivison's functional limitations in the area of persistence and pace. If these were not “significant” limitations as the term is used at step 2, it seems unlikely that she would have stated on the form that Nivison's condition will impose “limitations for 12 months.” (Doc. 20-17, p. 199), (AR 1226) After all, why would the Commissioner want to know if the claimant had insignificant limitations that would last for 12 months? She wouldn't. This question about duration, therefore, must be asking about “significant” limitations. And if Nivison has “significant” limitations that will last at least 12 months, it seems likely that they are caused by a “severe” impairment. See 20 C.F.R. § 404.1520(c) (“If you do not have any impairment or combination of impairments which significantly limits your physical or mental ability to do basic work activities, we will find that you do not have a severe impairment and are, therefore, not disabled.”) (emphasis added).
The court notes that the Commissioner could amend the form supplied to the examining consultants to explicitly ask the physician to rate the claimant's limitation in each of the four broad functional areas as either none, mild, moderate, marked, or extreme. See 20 C.F.R. 404.1520a(c)(4). Such an amendment might significantly reduce the need for the court and the parties to second-guess the opinion of the examining physician.
The Commissioner notes that Rohen qualified her opinion by stating that the “[w]riter cannot objectively verify” these limitations. That is true, and the ALJ might have used that statement to discount her opinion. But he did not do that. He mischaracterized her opinion, and then stated that he accepted it.
The Commissioner argues in the alternative that the ALJ's error, assuming he made one, was harmless. “An ALJ's failure to properly evaluate a physician's opinion may be harmless error when a reviewing court can confidently conclude that no reasonable ALJ, when fully crediting the opinion, could have reached a different disability determination.” Machelle H. v. Kijakazi, No. 1:20-CV-00357-CWD, 2021 WL 4342313, at *8 (D. Idaho Sept. 22, 2021) (punctuation modified). Here, however, it is by no means clear what a reasonable ALJ would do if Rohen's opinion were credited. A reasonable ALJ could conclude based on Rohen's opinion that Nivison had a severe impairment and continue the disability analysis past step two. If that happened, it is unclear what Nivison's Residual Functional Capacity (RFC) would be and whether there are jobs in the national economy that he could perform. The ALJ's failure to properly evaluate Rohen's medical opinion was not harmless. See, e.g., Machelle H. at *8 (“Had the ALJ credited some or all of Dr. Thompson's opinion, it could have affected the RFC assessment, the hypothetical posed to the vocational expert, and the disability determination. For this reason, the ALJ's error was not harmless.”).
RECOMMENDATION
For the foregoing reasons, the Magistrate Judge recommends that the District Court, after its independent review, reverse the final decision of the Commissioner and remand for further proceeding.
Pursuant to 28 U.S.C. § 636(b), any party may file and serve written objections within 14 days after being served with a copy of this Report and Recommendation. If objections are not timely filed, the party's right to de novo review may be waived. The Local Rules permit the filing of a response to an objection. They do not permit the filing of a reply to a response without leave of the District Court.