Case Name in Social Security Case - Unavailable

WO IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
JOYCE KERRI MAHLE, )
)
Plaintiff, )
)
vs. )
)
KIKOLO KIJAKAZI, )
) No. 3:21-cv-0090-HRH
Defendant. )
_______________________________________)
O R D E R
This is an action for judicial review of the denial of disability benefits under Title II
and Title XVI of the Social Security Act, 42 U.S.C. §§ 401–434, 1381-1383f. Plaintiff Joyce
Kerri Mahle has timely filed her opening brief1 to which defendant Kikolo Kijakazi has
timely responded.2 Oral argument was not requested and is not deemed necessary.
Procedural Background
On August 3, 2018, plaintiff filed applications for disability benefits under Title II and
Title XVI, alleging that she became disabled on October 14, 2016. Plaintiff alleges that she
is disabled due to low vision, back and neck pain, arthritis, and musculoskeletal problems.
1Docket No. 18.
2Docket No. 19.
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Plaintiff’s applications were denied, and she requested a hearing. After an administrative
hearing on January 27, 2020, an administrative law judge (ALJ) denied plaintiff’s
application. On September 8, 2020, the Appeals Council denied plaintiff’s request for
review, thereby making the ALJ’s March 27, 2020 decision the final decision of the
Commissioner. On April 13, 2021, plaintiff commenced this action for judicial review of the
Commissioner’s final decision.
General Background
Plaintiff was born on October 11, 1975. She was 41 years old on her alleged disability
onset date. Plaintiff has an associate’s degree in occupational industrial instrumentation.
Plaintiff’s past relevant work includes work as an engineer aide, an office helper, and an
administrative clerk.
ALJ’s Decision
The ALJ first determined that plaintiff met “the insured status requirements of the
Social Security Act through December 31, 2020.”3
The ALJ then applied the five-step sequential analysis used to determine whether an
individual is disabled.4
3Admin. Rec. at 29.
4The five steps are as follows:
Step one: Is the claimant presently engaged in substantial
gainful activity? If so, the claimant is not disabled. If not,
proceed to step two.
(continued...)
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At step one, the ALJ found that plaintiff had “not engaged in substantial gainful
activity since October 14, 2016, the alleged onset date. . . .”5
At step two, the ALJ found that plaintiff had “the following severe impairments:
obesity and psychotic disorder not otherwise specified. . . .”6 The ALJ found plaintiff’s low-
vision non-severe.7 The ALJ found plaintiff’s chronic low back/neck pain to be “a non-
medically determinable impairment. . . .”8
4(...continued)
Step two: Is the claimant’s alleged impairment sufficiently
severe to limit . . . her ability to work? If so, proceed to step
three. If not, the claimant is not disabled.
Step three: Does the claimant’s impairment, or combination of
impairments, meet or equal an impairment listed in 20 C.F.R.,
pt. 404, subpt. P, app. 1? If so, the claimant is disabled. If not,
proceed to step four.
Step four: Does the claimant possess the residual functional
capacity (“RFC”) to perform . . . her past relevant work? If so,
the claimant is not disabled. If not, proceed to step five.
Step five: Does the claimant’s RFC, when considered with the
claimant’s age, education, and work experience, allow . . . her
to adjust to other work that exists in significant numbers in the
national economy? If so, the claimant is not disabled. If not,
the claimant is disabled.
Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006).
5Admin. Rec. at 29.
6Admin. Rec. at 29.
7Admin. Rec. at 29.
8Admin. Rec. at 30.
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At step three, the ALJ found that plaintiff did “not have an impairment or combination
of impairments that meets or medically equals the severity of one of the listed impairments
in 20 CFR Part 404, Subpart P, Appendix 1. . . .”9 The ALJ noted that “there is no medical
listing for obesity specifically,” but she found “that the medical evidence does not establish
claimant’s obesity is at listing level severity.”10 As for plaintiff’s mental impairment, the
ALJ considered Listing 12.03 (schizophrenia spectrum and other psychotic disorders).11 The
ALJ considered whether the paragraph B criteria were satisfied and found that plaintiff had
a mild limitation in understanding, remembering, or applying information; a moderate
limitation in interacting with others; a moderate limitation with regard to concentrating,
persisting or maintaining pace; and a mild limitation as to adapting or managing oneself.12
The ALJ also found that the paragraph C criteria were not satisfied.13
“Between steps three and four, the ALJ must, as an intermediate step, assess the
claimant’s RFC.” Bray v. Comm’r of Social Security Admin., 554 F.3d 1219, 1222–23 (9th
Cir. 2009). The ALJ found that plaintiff had
the residual functional capacity to perform medium work as
defined in 20 CFR 404.1567(c) and 416.967(c) except she is
9Admin. Rec. at 30.
10Admin. Rec. at 30.
11Admin. Rec. at 30.
12Admin. Rec. at 30-31.
13Admin. Rec. at 31.
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limited to frequent climbing of ramps or stairs, no climbing of
ladders, ropes or scaffolds, frequent balancing, stooping and
kneeling, and only occasional crouching and crawling. She
must avoid even moderate exposure to hazardous machinery.
She is limited to no high pace or assembly line type work with
only occasional interaction with the public and coworkers, and
with no tandem tasks and supervisors.[14]
The ALJ discounted plaintiff’s pain and symptom statements based on the limited
treatment she had received, the medical record overall, and her reports of daily activities.15
The ALJ also discounted plaintiff’s pain and symptom statements because of drug seeking,
not taking her medication as prescribed, not following through with treatment, and substance
abuse.16
The ALJ found Dr. Anderson’s opinion persuasive.17 The ALJ found Dr. Lace’s
opinions persuasive.18 The ALJ found Dr. Buskirk’s opinions “moderately persuasive.”19
14Admin. Rec. at 32.
15Admin. Rec. at 33.
16Admin. Rec. at 35-36.
17Admin. Rec. at 37. Dr. Anderson opined that plaintiff could occasionally lift/carry
50 pounds; could frequently lift/carry 25 pounds; could stand/walk for 6 hours; could sit for
six hours; had no limits as to push/pull; could frequently climb ramps and stairs; could never
climb ladders/ropes/scaffolds; could frequently balance, stoop, and kneel; could occasionally
crouch and crawl; and should “avoid even moderate exposure to hazards because of the
obesity.” Admin. Rec. at 56-57.
18Admin. Rec. at 37. Dr. Lace’s opinions are discussed below in detail.
19Admin. Rec. at 37. On September 27, 2018, Dr. James R. Buskirk opined that
plaintiff had moderate limitations as to understanding, remembering, or applying informa-
(continued...)
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The ALJ found Dr. Backlund’s opinion to be unpersuasive.20 And, the ALJ found the
opinions of Dr. Maravelli and Dr. McGinness to be “not persuasive.”21
19(...continued)
tion; moderate limitations as to interacting with others; moderate limitations as to
concentration, persistence, or maintaining pace; and moderate limitations as to adapting or
managing oneself. Admin. Rec. at 92. Dr. Buskirk opined that plaintiff was not significantly
limited as to her ability to remember locations and work-like procedures,
understand/remember/carry out short and simple instructions, perform activities within a
schedule, maintain regular attendance, be punctual within customary tolerances, sustain an
ordinary routine without special supervision, work in coordination with or in proximity to
others without being distracted by them, make simple work-related decisions, ask simple
questions or request assistance, accept instructions and respond appropriately to criticism
from supervisors, maintain socially appropriate behavior, adhere to basic standards of
neatness and cleanliness, be aware of normal hazards and take appropriate precautions, travel
to unfamiliar places or use public transportation, and set realistic goals or make plans
independently of others; and was moderately limited in her ability to
understand/remember/carry out detailed instructions, maintain attention and concentration
for extended periods, complete a normal workday and workweek without interruptions from
psychologically based symptoms, perform at a consistent pace without an unreasonable
number and length of rest periods, interact appropriately with the general public, get along
with coworkers or peers without distracting them or exhibiting behavioral extremes, and
respond appropriately to changes in the work setting. Admin. Rec. at 94-96. Dr. Buskirk
also opined that plaintiff was “capable of simple tasks,” could “persist at simple tasks in at
least 2 hours intervals throughout a normal workday/week,” was “capable of cursory public
and coworker contact,” and “would do best with a set routine.” Admin. Rec. at 94-96. Dr.
Buskirk noted that plaintiff had “shown psychotic features which would, if exacerbated,
cause deterioration of her functioning.” Admin. Rec. at 96.
20Admin. Rec. at 37. On September 28, 2018, William M. Backlund, M.D., opined
that plaintiff’s “physical condition is non severe.” Admin. Rec. at 91.
21Admin. Rec. at 38. On January 29, 2019, Dr. Maravelli opined that the “[e]vidence
in the file lacks sufficient longitudinal history and exam evidence and insufficient objective
testing to allow for assessment of the allegations in this case.” Admin. Rec. at 108. On
January 25, 2019, Dr. McGinness opined that “[t]here is insufficient evidence to substantiate
the presence” of an anxiety and obsessive-compulsive disorder. Admin. Rec. at 109.
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The ALJ mentioned the third-party function reports submitted by Brittany Sallaffie,
plaintiff’s friend,22 but “did not provide articulation about this evidence, which is inherently
neither valuable nor persuasive.”23
At step four, the ALJ found that plaintiff was “capable of performing past relevant
work as an administrative clerk, engineering aide and case aide.”24
The ALJ also made alternative step five findings. The ALJ found that plaintiff was
“capable of making a successful adjustment to other work that exists in significant numbers
in the national economy[,]” including working as a janitor, cleaner, or laundry worker.25
Thus, the ALJ concluded that plaintiff had “not been under a disability, as defined in
the Social Security Act, from October 14, 2016, through the date of this decision. . . .”26
Standard of Review
Pursuant to 42 U.S.C. § 405(g), the court has the “power to enter, upon the pleadings
and transcript of the record, a judgment affirming, modifying, or reversing the decision of
the Commissioner. . . .” The court “properly affirms the Commissioner’s decision denying
benefits if it is supported by substantial evidence and based on the application of correct legal
22Admin. Rec. at 234-242, 266-274.
23Admin. Rec. at 38.
24Admin. Rec. at 38.
25Admin. Rec. at 39-40.
26Admin. Rec. at 40.
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standards.” Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997). “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.’” Id. (quoting Andrews
v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). “‘To determine whether substantial evidence
supports the ALJ’s decision, [the court] review[s] the administrative record as a whole,
weighing both the evidence that supports and that which detracts from the ALJ’s conclu-
sion.’” Id. (quoting Andrews, 53 F.3d at 1039). If the evidence is susceptible to more than
one reasonable interpretation, the court must uphold the Commissioner’s decision. Id. But,
the Commissioner’s decision cannot be affirmed “‘simply by isolating a specific quantum of
supporting evidence.’” Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001) (quoting
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)).
Discussion
Plaintiff first argues that the ALJ failed to fully develop the record. “The ALJ in a
social security case has an independent ‘duty to fully and fairly develop the record and to
assure that the claimant’s interests are considered.’” Tonapetyan v. Halter, 242 F.3d 1144,
1150 (9th Cir. 2001) (quoting Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996)). “This
duty extends to the represented as well as to the unrepresented claimant.” Id. “When,” as
here, “the claimant is unrepresented, however, the ALJ must be especially diligent in
exploring for all the relevant facts.” Id. “The ALJ’s duty to develop the record fully is also
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heightened where the claimant may be mentally ill and thus unable to protect her own
interests.” Id.
Plaintiff’s argument that the ALJ failed to fully develop the record is based on the
testimony of Dr. Lace, the psychological medical expert. Dr. Lace testified that plaintiff had
significant symptoms in late 2016 but that as of September 2018, “the record indicate[s] no
depression, some anxiety, [and] no psychotic symptoms.”27 Dr. Lace testified that “[t]here’s
not a lot in terms of ongoing intensive treatment notes.”28 Dr. Lace also testified that plaintiff
was prescribed medications, that these medications helped with plaintiff’s symptoms, and
“[f]rom what [he] could tell,” plaintiff took the medications as prescribed.29 Dr. Lace also
testified that in late 2016, plaintiff had “a GAF score of 40 which is in the more severe range,
although that was an admission to the hospital.”30
Plaintiff argues that “[t]he ALJ failed to inquire into these facts and evidence
contradicting this testimony, thereby failing to properly develop the record and facts in this
case.”31 For example, Dr. Lace testified that the GAF score of 40 was in the context of an
admission to the hospital, but plaintiff points out that her GAF was assessed as being 40 at
27Admin. Rec. at 60.
28Admin. Rec. at 60.
29Admin. Rec. at 60.
30Admin. Rec. at 59.
31Plaintiff’s Memorandum of Law in Support of a Social Security Appeal at 14,
Docket No. 18.
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the time of discharge, after she had been stabilized for discharge home. Plaintiff contends
that Dr. Lace did not discuss the significance of the fact that her GAF score was 40 at the
time of discharge, which indicates an improvement from the time of her admission, when it
was noted that she was catatonic.32 Plaintiff argues that it is significant that she was released
with a GAF in the severe range, as that indicates that she had continuing, severe functional
limitations, which she argues is documented in the clinical findings at discharge and in
subsequent records.
Plaintiff also argues that Dr. Lace’s testimony that she was compliant with
medications and that medication was effective in treating her mental health impairment was
contrary to the record and that the ALJ should have been aware of this and followed up on
it. Plaintiff contends that the record shows that she repeatedly stopped or refused
medications and requested to be taken off medication.33 The record also shows that at times
plaintiff ran out of her medications,34 which may be an indication that she was not taking her
medication as prescribed. Plaintiff also contends that she was found to be paranoid or
32Admin. Rec. at 356.
33Admin. Rec. at 368 (ANP Cliff noted that plaintiff “denies any psychiatric symptoms
except for possible anxiety but is not willing to take medications. She continues to state ‘I’m
fine’”); 445 (PAC Murray noted that plaintiff “just wants to get ‘weaned off’ her meds and
get some valium for her anxiety”); 452 (at ER visit, it is noted that plaintiff “does not feel
that she needs to be on [the] medication she was discharged with, shows me multiple bottles
of medications including clonazepam, Risperdal, and sertraline. She states that she stopped
taking all of these medications yesterday.”).
34Admin. Rec. at 425, 428.
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lacking insight and judgment, even when taking her medications.35 Thus, plaintiff argues that
Dr. Lace’s testimony contradicted the record and the ALJ should have, but failed, to inquire
further about whether plaintiff was actually compliant with her medication and whether her
medication was effective.
Plaintiff also contends that Dr. Lace’s testimony suggests that she had no significant
symptoms and received little to no mental health treatment after late 2016. Plaintiff argues
that this testimony triggered the ALJ’s duty to further inquire as to whether her lack of
treatment and refusal to engage with behavioral health providers were symptoms of her
psychosis. Plaintiff contends that Dr. Lace ignored evidence of her agitated and irritable
response to behavioral health questions.36 But plaintiff argues that the ALJ should have been
aware of this evidence and questioned Dr. Lace about it, which the ALJ did not do. Plaintiff
also suggests that Dr. Lace’s testimony that she had no significant symptoms after late 2016
was not accurate. Plaintiff points out that in 2017, 2018, and 2020, there were times when
35Admin. 364 (noting that plaintiff presented “some what paranoid”); 391 (poor
judgment noted); 398 (impulsive judgment noted).
36Admin. Rec. at 362 (ANP Cliff noted that plaintiff “is currently showing minimal
participation in the process of evaluation and treatment of her reported anxiety”); 391 (noting
that plaintiff was “[f]rustrated by PCP questioning, irritable towards BHC[,]” and “declines
to describe symptoms/triggers. Unwilling to cooperate with BHC questions”); 393 (PAC
Murray noted that plaintiff “has missed several appts with BURT provider and at least twice
has met with BHC at my request, but refuses to talk with them”); 415 (upon arrival at ER,
plaintiff “states that she feels like she is dehydrated and feels generally unwell[;] when asked
further questions [s]he states [s]he does not wish to answer them”); 607 (noting that plaintiff
not interested in a focused assessment of her mental health issues).
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she had flat affect,37 distractibility,38 preoccupation,39 decreased eye contact,40 and
disorganization.41
“An ALJ’s duty to develop the record further is triggered only when there is
ambiguous evidence or when the record is inadequate to allow for proper evaluation of the
evidence.” Mayes v. Massanari, 276 F.3d 453, 459–60 (9th Cir. 2001). Although it might
have been somewhat inaccurate, Dr. Lace’s testimony was not ambiguous. Rather, the
problem here was that the record was inadequate. Dr. Lace’s testimony, along with other
evidence in the record, suggested that plaintiff’s mental impairment might be the reason she
was not seeking treatment and did not follow the treatment that was prescribed. Yet, the ALJ
did nothing to try to connect these dots. She did not ask Dr. Lace any questions about
whether some of plaintiff’s actions or inactions were manifestations of plaintiff’s psychotic
disorder nor did the ALJ appear to even consider whether a consultative exam might have
been called for in order to explore whether plaintiff’s resistance to mental health treatment
was a result of her mental health impairment. The ALJ in this case was faced with a claimant
who may have been mentally ill and who was unrepresented. Thus, the ALJ had a duty to
37Admin. Rec. at 362, 377, 609.
38Admin. Rec. at 377, 608.
39Admin. Rec. at 362, 377, 609.
40Admin. Rec. at 609.
41Admin. Rec. at 377, 609.
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be “especially diligent in exploring for all the relevant facts.” Tonapetyan, 242 F.3d at 1150.
But, the ALJ failed to carry out this duty.
The ALJ’s failure to fully develop the record as to plaintiff’s mental health
impairment calls in to question the ALJ’s treatment of Dr. Lace’s opinions. Dr. Lace opined
that plaintiff had mild limitations as to understanding, remembering, or applying information;
moderate limitations as to interacting with others; moderate limitations as to concentration,
persistence, or maintaining pace; and mild limitations as to adapting or managing oneself.42
Dr. Lace opined that plaintiff was able to “work full time,” but would “be limited to
occasional contact with coworkers, the general public, and supervisors. And would be
limited to work where there is no fast-paced production line type tasks, and perhaps limited
to daily quotas.”43
The ALJ found Dr. Lace’s opinions persuasive because he was “the only psychologi-
cal consultant to have the opportunity to review the entire, longitudinal medical record, and
he has specialized knowledge of Social Security disability program regulations and the
mental impairment listings.”44 The ALJ also found that “Dr. Lace based his opinion on
objective, clinical findings in the medical record, with citations to the record, and supported
42Admin. Rec. at 61.
43Admin. Rec. at 61.
44Admin. Rec. at 37.
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it with reasonable explanations.”45 And, the ALJ found that Dr. Lace’s opinions were
“consistent with the overall record[.]”46 But, Dr. Lace, and in turn the ALJ, failed to consider
whether plaintiff’s symptoms were a manifestation of her psychotic disorder, even though
there was evidence in the record to suggest as much.
The ALJ’s failure to fully develop the record as to plaintiff’s mental impairment also
impacted the ALJ’s findings as to credibility of plaintiff’s subjective complaints. The ALJ
provided a number of reasons for discounting plaintiff’s symptom statements, including that
she had received limited treatment, the medical record overall, that she did not take her
medication as prescribed, her drug seeking,47 and that she did not follow through with
treatment.48 But, if these actions or inactions were viewed through the lens of plaintiff’s
psychotic disorder, then it is quite possible that these were not clear and convincing reasons49
45Admin. Rec. at 37.
46Admin. Rec. at 37.
47There was evidence in the record that plaintiff requested valium for her anxiety and
that plaintiff seemed fixated on valium to help her with her symptoms. Admin. Rec. at 379.
48Admin. Rec. at 35-36.
49“An ALJ engages in a two-step analysis” in evaluating “a claimant’s testimony
regarding subjective pain or symptoms. . . .” Garrison v. Colvin, 759 F.3d 995, 1014 (9th
Cir. 2014). “‘First, the ALJ must determine whether the claimant has presented objective
medical evidence of an underlying impairment which could reasonably be expected to
produce the pain or other symptoms alleged.’” Id. (quoting Lingenfelter v. Astrue, 504 F.3d
1028, 1035-36 (9th Cir. 2007)). “If the claimant satisfies the first step of this analysis, and
there is no evidence of malingering, ‘the ALJ can reject the claimant’s testimony about the
severity of her symptoms only by offering specific, clear and convincing reasons for doing
(continued...)
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to discount plaintiff’s subjective statements. The court cannot make that determination,
however, because the ALJ failed to fully develop the record in this case.
The other reasons the ALJ gave for discounting plaintiff’s symptom statements cannot
save the ALJ’s credibility findings. The ALJ discounted plaintiff’s statements based on
plaintiff’s daily activities. The ALJ pointed out that plaintiff was the “sole care provider for
her three children[,]” that “[s]he manages her personal care/hygiene and medications without
problem,” that “she is able to get out of the house regularly, maintain a driver’s license
without restrictions . . . , get around by walking, shop in stores, and attend medical and
counseling appointments. . . .”50 The ALJ also pointed out that plaintiff “spends time in
social activities with family including playing with her children, attending her children’s
school/sports activities . . . , and going to church services. . . .”51 The ALJ concluded that
plaintiff’s “reported activities strongly indicate that her impairments would not preclude her
from performing a limited range of medium exertional unskilled work with limited social
interaction.”52
49(...continued)
so.’” Id. at 1014-15 (quoting Smolen, 80 F.3d at 1281). “This is not an easy requirement to
meet: ‘The clear and convincing standard is the most demanding required in Social Security
cases.’” Id. at 1015 (quoting Moore v. Comm’t of Soc. Sec. Admin., 278 F.3d 920, 924 (9th
Cir. 2002)).
50Admin. Rec. at 36.
51Admin. Rec. at 36.
52Admin. Rec. at 36.
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But, as the Ninth Circuit has “recognized[,] disability claimants should not be
penalized for attempting to lead normal lives in the face of their limitations.” Reddick v.
Chater, 157 F.3d 715, 722 (9th Cir. 1998). Moreover, the ALJ failed to explain exactly how
these activities undermined plaintiff’s symptom statements.
The ALJ also discounted plaintiff’s symptom statements because there was evidence
in the record of substance abuse. The ALJ pointed out that “in [plaintiff’s] most recent
medical visit (January 2020), the claimant’s laboratory test results show multiple illicit
substances in her system including amphetamine, barbiturates, benzodiazepine,
buprenorphine, cocaine, ecstasy, marijuana, methadone, methamphetamine, morphine,
oxycodone, PCP and TCA. . . .”53
However, as plaintiff points out, this was inaccurate. The “positive” or “present” test
results that the ALJ referred to were from a “control” sample used from comparison purposes
and plaintiff’s actual blood tests show a “negative” result for all of the foregoing
substances.54 Thus, contrary to the ALJ’s assertion that plaintiff was abusing an overwhelm-
ing number of illicit substances, plaintiff’s lab work actually showed that there was no
presence of illicit substances.
Because the ALJ erred by failing to fully develop the record, a failure that impacted
the ALJ’s treatment of Dr. Lace’s opinions and plaintiff’s subjective symptom statements,
53Admin. Rec. at 36.
54Admin. Rec. at 724-726.
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the court must consider whether to remand this matter for further proceedings or for an award
of benefits. “Remand for further administrative proceedings is appropriate if enhancement
of the record would be useful.” Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004)
(emphasis omitted). “Conversely, where the record has been developed fully and further
administrative proceedings would serve no useful purpose, the district court should remand
for an immediate award of benefits.” Id.
Here, a remand for further proceedings is appropriate so that the ALJ can fully
develop the record as it pertains to plaintiff’s mental health impairment.
Conclusion
The Commissioner’s decision is reversed and this matter is remanded for further
proceedings.
DATED at Anchorage, Alaska, this 4th day of November, 2021.
/s/ H. Russel Holland
United States District Judge
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