Echols v. Saul

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
PAMELA E.,1
Plaintiff,
vs.
ANDREW SAUL,2
Commissioner of Social Security,
Defendant. Case No. 4:19-cv-00004-SLG
DECISION AND ORDER
On or about November 29, 2012, Pamela E. (“Ms. E.”) filed an application for
Supplemental Security Income under Title XVI (“SSI”) of the Social Security Act (“the
Act”), alleging disability beginning May 30, 2011.3 Ms. E. has exhausted her
administrative remedies and filed a Complaint seeking relief from this Court.4 On July 17,
2019, Ms. E. filed an opening brief.5 The Commissioner filed an Answer and a brief in
1 The Plaintiff’s name is partially redacted in compliance with Federal Rule of Civil Procedure
5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case
Management of the Judicial Conference of the United States.
2 Andrew Saul is now the Commissioner of Social Security and is automatically substituted as a
party pursuant to Fed. R. Civ. P. 25(d). See also section 205(g) of the Social Security Act, 42
U.S.C. 405(g) (action survives regardless of any change in the person occupying the office of
Commissioner of Social Security).
3 Administrative Record (“A.R.”) 15. The application summary lists December 14, 2012 as the
application date. A.R. 386. Ms. E., through her representative, amended the alleged onset date
to November 29, 2012, her application date. A.R. 15, 40.
4 Docket 1 (Compl.). Ms. E. obtained counsel and amended her Complaint. Dockets 4, 5, 8.
5 Docket 15 (Pamela E.’s Opening Br.).
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opposition to Ms. E.’s opening brief.6 Ms. E. filed a one-page reply brief.7 Oral argument
was not requested and was not necessary to the Court’s decision. This Court has
jurisdiction to hear an appeal from a final decision of the Commissioner of Social
Security.8 For the reasons set forth below, Ms. E.’s request for relief will be granted.
I. STANDARD OF REVIEW
A decision by the Commissioner to deny disability benefits will not be overturned
unless it is either not supported by substantial evidence or is based upon legal error.9
“Substantial evidence” has been defined by the United States Supreme Court as “such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.”10 Such evidence must be “more than a mere scintilla,” but may be “less than
a preponderance.”11 In reviewing the agency’s determination, the Court considers the
evidence in its entirety, weighing both the evidence that supports and that which detracts
from the administrative law judge (“ALJ”)’s conclusion.12 If the evidence is susceptible to
6 Docket 13 (Answer); Docket 17 (Def.’s Br.).
7 Docket 18 (Reply).
8 42 U.S.C. § 405(g).
9 Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992) (citing Gonzalez v.
Sullivan, 914 F.2d 1197, 1200 (9th Cir. 1990)).
10 Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)).
11 Perales, 402 U.S. at 401; Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975)
(per curiam).
12 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).
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more than one rational interpretation, the ALJ’s conclusion must be upheld.13 A reviewing
court may only consider the reasons provided by the ALJ in the disability determination
and “may not affirm the ALJ on a ground upon which he did not rely.”14 An ALJ’s decision
will not be reversed if it is based on “harmless error,” meaning that the error “is
inconsequential to the ultimate nondisability determination . . . or that, despite the legal
error, ‘the agency’s path may reasonably be discerned, even if the agency explains its
decision with less than ideal clarity.’”15
II. DETERMINING DISABILITY
The Act provides for the payment of disability insurance to individuals who have
contributed to the Social Security program and who suffer from a physical or mental
disability.16 In addition, SSI may be available to individuals who are age 65 or older, blind,
or disabled, but who do not have insured status under the Act.17 Disability is defined in
the Act as follows:
[I]nability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last
for a continuous period of not less than 12 months.18
13 Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (citing Rhinehart v. Finch, 438 F.2d
920, 921 (9th Cir. 1971)).
14 Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014).
15 Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (internal quotation marks and
citations omitted).
16 42 U.S.C. § 423(a).
17 42 U.S.C. § 1381a.
18 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
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The Act further provides:
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.
For purposes of the preceding sentence (with respect to any individual),
“work which exists in the national economy” means work which exists in
significant numbers either in the region where such individual lives or in
several regions of the country.19
The Commissioner has established a five-step process for determining disability
within the meaning of the Act.20 A claimant bears the burden of proof at steps one through
four in order to make a prima facie showing of disability.21 If a claimant establishes a
prima facie case, the burden of proof then shifts to the agency at step five.22 The
Commissioner can meet this burden in two ways: “(a) by the testimony of a vocational
expert (“VE”), or (b) by reference to the Medical-Vocational Guidelines at 20 C.F.R. pt.
404, subpt. P, app. 2.”23 The steps, and the ALJ’s findings in this case, are as follows:
19 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
20 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
21 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1096 n.1 (9th Cir. 2014) (quoting
Hoopai v. Astrue, 499 F.3d 1071, 1074–75 (9th Cir. 2007)); see also Tackett v. Apfel, 180 F.3d
1094, 1098 (9th Cir. 1999).
22 Treichler, 775 F.3d at 1096 n.1; Tackett, 180 F.3d at 1098 (emphasis in original).
23 Tackett, 180 F.3d at 1101.
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Step 1. Determine whether the claimant is involved in “substantial gainful activity.”
The ALJ found that Ms. E. had not engaged in substantial gainful activity since November
29, 2012, the application date.24
Step 2. Determine whether the claimant has a medically severe impairment or
combination of impairments. A severe impairment significantly limits a claimant’s physical
or mental ability to do basic work activities and does not consider age, education, or work
experience. The severe impairment or combination of impairments must satisfy the
twelve-month duration requirement. The ALJ determined that Ms. E.’s substance abuse;
depressive disorder; dysthymia; bipolar disorder unspecified; bipolar I disorder;
generalized anxiety disorder; post-traumatic stress disorder; recent degenerative
disc/joint disease in the lumbar and cervical spines; and status post bunion were severe
impairments. He noted that “if [Ms. E.] was abstinent from substances, her mental health
impairments of depressive disorder; dysthymia; bipolar disorder; generalized anxiety
disorder; and post-traumatic stress disorder (PTSD) would not be severe impairments.”
The ALJ also determined that Ms. E.’s restless leg syndrome was non-severe and her
migraine headaches were not medically determinable.25
Step 3. Determine whether the impairment or combination of impairments meets
or equals the severity of any of the listed impairments found in 20 C.F.R. pt. 404, subpt.
P, app.1, precluding substantial gainful activity. If the impairment(s) is/are the equivalent
of any of the listed impairments, and meet(s) the duration requirement, the claimant is
24 A.R. 18.
25 A.R. 18–19.
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conclusively presumed to be disabled. If not, the evaluation goes on to the fourth
step. The ALJ determined that Ms. E. did not have an impairment or combination of
impairments that met or medically equaled the severity of a listed impairment.26
Before proceeding to step four, a claimant’s residual functional capacity (“RFC”) is
assessed. Once determined, the RFC is used at both step four and step five. An RFC
assessment is a determination of what a claimant is able to do on a sustained basis
despite the limitations from her impairments, including impairments that are not
severe.27 The ALJ concluded that Ms. E. had the RFC to perform medium work with the
following limitations: never climbing ladders, ropes, or scaffolds and never having
exposure to unprotected heights or hazardous machinery. She was also limited “to work
involving only occasional interaction with the general public.” The ALJ noted that this
limitation was included “due to the effect of substances at times; otherwise, there would
be no mental limitations.”28
Step 4. Determine whether the claimant is capable of performing past relevant
work. At this point, the analysis considers whether past relevant work requires the
performance of work-related activities that are precluded by the claimant’s RFC. If the
claimant can still do her past relevant work, the claimant is deemed not to be
26 A.R. 19.
27 20 C.F.R. § 404.1520(a)(4), 416.920(a)(4).
28 A.R. 21.
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disabled. Otherwise, the evaluation process moves to the fifth and final step. The ALJ
found that Ms. E. had no past relevant work.29
Step 5. Determine whether the claimant is able to perform other work in the
national economy in view of her age, education, and work experience, and in light of the
RFC. If so, the claimant is not disabled. If not, the claimant is considered disabled. The
ALJ found that considering Ms. E.’s age, education, work experience, and residual
functional capacity, there were jobs that existed in significant numbers in the national
economy that Ms. E. could perform, including janitor, cleaner II, and laundry worker.30
Based on the foregoing, the ALJ concluded that Ms. E. was not disabled since
November 29, 2012, the date the application was filed.31
III. PROCEDURAL AND FACTUAL BACKGROUND
Ms. E. was born in 1963; she is currently 56 years old.32 She reported last working
part-time for her landlord as a painter and cleaner, but that work did not constitute
substantial gainful activity.33 In the past, she also worked as a waitress, at a fabric store,
and as a housekeeper.34 Ms. E. initiated her application for disability benefits on or about
November 29, 2012.35 On March 13, 2013, the SSA field office found Ms. E. was not
29 A.R. 26.
30 A.R. 26–27.
31 A.R. 27.
32 A.R. 26, 386.
33 A.R. 18, 70–73.
34 A.R. 70–73, 492, 516.
35 A.R. 15, 386; supra note 2. The application in the record uses December 14, 2012 as the
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disabled.36 After a hearing on January 12, 2015, the ALJ issued an unfavorable ruling on
March 19, 2015.37 The Appeals Council remanded the case back to the ALJ on August
4, 2016 on several grounds.38 On August 16, 2017, Ms. E. appeared by video with
application filing date. A.R. 386.
36 A.R. 138.
37 A.R. 139–50.
38 The Appeals Council directed the ALJ to:
• Evaluate and weigh the report from consultative psychological examiner, Nina Wendt,
PhD.;
• Comply with post-hearing development procedures according to HALLEX I-2-7-1, 1-2-7-
30, and 1-2-7-35;
• As appropriate, the ALJ may request the nontreating source, Dr. Wendt, to provide
further clarification of her April 8, 2015 opinion;
• If necessary, obtain additional evidence concerning the claimant’s atypical depressive
disorder, generalized anxiety disorder with episodes of panic/PTSD, bipolar disorder
NOS, alcohol dependence by history, in order to complete the administrative record in
accordance with the regulatory standards regarding consultative examinations and
existing medical evidence. The additional evidence may include, if warranted and
available, a consultative mental examination with psychological testing and medical
source statements about what the claimant can still do despite her impairments;
• Give further consideration to the claimant’s maximum residual functional capacity during
the entire period at issue and provide rationale with specific references to evidence of
record in support of assessed limitations (SSR 96-8p). In so doing, evaluate the treating
and nontreating source opinions and nonexamining opinions pursuant to the provisions
of 20 CFR 416.927 and Social Security Rulings 96-2p, 96-5p and 96-6p, and explain the
weight given to such opinion evidence. Further evaluate and weigh other source
evidence pursuant to Social Security Ruling 06-3p. As appropriate, the ALJ may request
the treating and nontreating sources to provide additional evidence and/or further
clarification of the opinions and medical source statements about what the claimant can
still do despite her impairments. The ALJ may enlist the aid and cooperation of the
claimant’s representative in developing evidence from the claimant’s treating sources;
• Further evaluate the claimant’s alleged intensity and persistence of her symptoms and
provide rationale in accordance with the disability regulations and Social Security Ruling
16-3p (20 C.F.R. 416.929); and
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counsel at a hearing before ALJ Paul Hebda.39 On December 21, 2017, ALJ Hebda
issued a second unfavorable decision.40 The Appeals Council denied Ms. E.’s request
for review on December 21, 2018.41 On February 20, 2019, Ms. E. appealed to this Court;
she is represented by counsel in this appeal.42
The Medical Record
Although the Court’s review of the record is primarily focused on the time period
after the application date of November 29, 2012, the Court also considers the following
relevant medical evidence that predates Ms. E.’s application date:
On August 22, 2012, Ms. E. saw Kendel Bormann, PA-C, at Interior Community
Health Center in Fairbanks, Alaska (“ICHC”). She reported “significant weight gain,
insomnia, psychomotor agitation, feelings of worthlessness (guilt), impaired concentration
(indecisiveness), and recurrent thoughts of death.” She also reported that she planned
to go to the Ralph Perdue treatment center for alcoholism. On physical examination, PA
Bormann observed that Ms. E. was alert, cooperative, anxious, and tearful.43
• If warranted by the expanded record, obtain supplemental evidence from a vocational
expert to clarify the effect of the assessed limitations on the claimant’s occupational
base (Social Security Rule 85-15). Before relying on the vocational expert evidence the
ALJ will identify and resolve any conflicts between the occupational evidence provided
by the vocational expert and information in the Dictionary of Occupational Titles (DOT)
and its companion publication, the Selected Characteristics of Occupations (Social
Security Ruling 00-4p). A.R. 15–16, 156–60.
39 A.R. 69–81.
40 A.R. 15–28.
41 A.R. 1–5.
42 Docket 1. See supra note 3.
43 A.R. 822–24.
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On August 30, 2012, Ms. E. saw Alisabeth Thurston-Hicks, M.D., at Fairbanks
Psychiatric & Neurological Clinic for a psychiatric evaluation. Ms. E. reported a history of
panic disorder, depression, and bipolar disorder with a hospitalization in 1995 for a suicide
attempt by overdose and hospitalization in the psychiatric unit of Fairbanks Memorial
Hospital in 2009. On examination, Dr. Thurston-Hicks noted that Ms. E. was alert, but “a
little bit slowed in her speech and mannerisms” with a “somewhat depressed” affect. Ms.
E. denied experiences of hallucinations or paranoid delusions. Dr. Thurston-Hicks
observed that Ms. E. was able to recall 3/3 items immediately and 2/3 after five minutes,
was unable to complete serial sevens, and could spell the word “world” backwards. Dr.
Thurston-Hicks opined that Ms. E.’s judgment and insight were fair. She noted “an
emerging pattern of continued mood instability with brief but impairing periods of both
manic symptoms and depressed symptoms.” She also noted that Ms. E. likely had bipolar
spectrum mood disorder if Ms. E.’s “report [was] accurate regarding abstinence from
alcohol and cocaine for at least a month with continued persistent mood cycling.” Dr.
Thurston-Hicks also diagnosed Ms. E. with suspected PTSD.44
On September 19, 2012, Ms. E. saw Suzette Mailloux, N.D., at Alaska Center for
Natural Medicine in Fairbanks, Alaska. She reported recently attempting suicide and that
she had been depressed and drinking. She also reported being on a waitlist for
alcoholism treatment. On examination, ND Mailloux observed that Ms. E. was in no
distress with a normal and appropriate affect.45
44 A.R. 584–86.
45 A.R. 589–91.
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The following are the relevant medical records after November 29, 2012:
On June 3, 2013, Ms. E. visited Helmut Kramer, MD, at Fairbanks Community
Behavioral Health Center for a psychiatric evaluation. She was living alone at the time.
She reported maintaining sobriety since February of 2013, but that she continued to
struggle with suicidal thoughts, nightmares and anxiety. She stated she had been
prescribed medications such as Zyprexa, Paxil, Seroquel, Prozac, Topamax, and
Cymbalta in the past, but reported that none of those medications had been helpful. On
examination, Dr. Kramer observed that Ms. E. was alert and cooperative, but “clearly
having difficulty with focusing and concentrating.” He also noted that she was “clearly
very anxious, distraught, and depressed” and “in dire need for help.”46
On January 31, 2014, Ms. E. went to the emergency department at Fairbanks
Memorial Hospital for acute anxiety and a refill of her prescriptions for clonazepam and
Depakote.47 She reported that she had been out of her medications for approximately
three days. She reported that she was a “little bit more anxious” and her sleep pattern
was “a little bit off.” On examination, the attending physician observed that Ms. E. was
alert and oriented; her speech was clear; she answered questions appropriately; made
good eye contact; and was well-groomed.48
46 A.R. 645–47.
47 Clonazepam is used to treat seizures and panic attacks. See
https://www.webmd.com/drugs/2/drug-14403-6006/clonazepam-oral/clonazepam-oral/details.
Depakote is used to treat seizure disorders, bipolar disorder, and prevent migraine headaches.
See https://www.webmd.com/drugs/2/drug-1788/depakote-oral/details.
48 A.R. 781–83.
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On May 28, 2014, Ms. E. initiated care with Jean Boga, ANP, at Fairbanks
Community Mental Health Services via TeleBehavioral MED. Ms. E. reported taking her
medications as prescribed. She reported hearing voices a couple of times of week. ANP
Boga opined that Ms. E.’s medications were marginally effective as she observed that
Ms. E. was “still very anxious and appears to be manicky.” ANP Boga also observed that
Ms. E. was on time and adequately groomed and dressed. She noted that Ms. E. was
“somewhat tangential” and had a great deal of difficulty remembering. She opined that
the diagnosis of Depressive Disorder, NOS “may not be an accurate diagnosis”; instead
ANP Boga “highly suspect[s] that [Ms. E.] is at least hypomanic at this point.” ANP Boga
increased Ms. E.’s Depakote, changed her Klonopin prescription, and added Prazosin.49
On July 5, 2014, Ms. E. saw Kjersti Bowen, MSW, at Fairbanks Community Mental
Health Services for a mental health assessment. On examination, MSW Bowen observed
that Ms. E. was adequately groomed; cooperative and attentive; with a “groggy” mood
and tearful affect; appropriate statements with mood; linear thinking with no obvious
delusions or abnormal thoughts; reported auditory and visual hallucinations; oriented to
person, place, time, and situation; with normal abstract thinking and normal immediate
memory. MSW Bowen reported that Ms. E. did not perform the serial sevens test, but
she did complete the serial threes and counting tests. Ms. E. relayed extensive and
significant physical and sexual abuse and other traumas during her life. MSW Bowen
diagnosed Ms. E. with Bipolar I; chronic PTSD; and alcohol dependence, in early
remission. Ms. E. reported being on probation and doing community service. MSW
49 A.R. 658–59.
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Bowen opined that Ms. E. had a serious mental illness and was unable to function
independently as a worker, student, or homemaker and was unable to “exhibit appropriate
social behavior, resulting in intervention by the mental health system or judicial system.”50
On August 6, 2014, Ms. E. followed up with ANP Boga. She reported that her
prescription of Depakote was no longer effective and that she was “up all night” and felt
terrible. ANP Boga assessed Ms. E. with Bipolar I Disorder, Type I and PTSD.51 On the
same date, ANP Boga opined that Ms. E. had been disabled since May 2011 and was
unable to perform any kind of gainful activity full time in a competitive work environment.52
On August 29, 2014, Ms. E. followed up with ANP Boga. She reported recently
running out of Latuda. On examination, she was very anxious and irritable; on time for
her appointment; and adequately groomed and dressed. ANP Boga also observed that
Ms. E. had “some difficulty remembering,” but that her memory had improved somewhat.
She noted that Ms. E. was better organized, much less irritable, and did not cry at the
appointment. ANP Boga opined that although Ms. E.’s mental status was improving, she
still considered Ms. E. disabled.53
On September 18, 2014, Ms. E. visited ANP Boga. She reported that she was not
drinking. She also reported stopping Latuda due to a dystonic reaction and continuing to
have racing thoughts, anxiety, and irritability. ANP Boga noted that Ms. E. “was much
50 A.R. 660–673.
51 A.R. 656–57.
52 A.R. 643.
53 A.R. 654–55.
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calmer” and “less irritable” than the previous visit, but had memory and tracking difficulties
and continued to be anxious, although her anxiety was improving. ANP Boga opined that
“[w]hile [Ms. E.’s] mental status [was] improving, she remain[ed] very manicky.” ANP
Boga prescribed Depakote, Prazosin, Klonopin, and a decreased dosage of Latuda.54
On October 17, 2014, Ms. E. saw ANP Boga. She reported that she stopped taking
her Latuda prescription due to side effects. On examination, ANP Boga observed that
Ms. E. was adequately groomed and dressed. ANP Boga noted that Ms. E. “remains very
anxious, but not as anxious as in the past and was less irritable and less tearful. She
also noted that Ms. E. continued to have memory problems; pressured speech, although
less so; tangential thoughts, but better organized; and improved judgment and insight.
ANP Boga discontinued Latuda, but continued Ms. E.’s other prescriptions. She noted
that Ms. E.’s mental status was improving, but that she should still be considered
disabled.55
On December 18, 2014, Ms. E. followed up with ANP Boga. She reported feeling
depressed, having nightmares, and being afraid to go to sleep. On examination, ANP
Boga observed that Ms. E. was on time and adequately groomed and dressed. She noted
that Ms. E. was cooperative with the interview and her speech was normal. ANP Boga
noted that Ms. E.’s mood was “anxious and somewhat depressed” and that she was
crying, although not sobbing, during the interview. She noted that Ms. E. was
experiencing racing thoughts and was tangential and although she was not experiencing
54 A.R. 652–53.
55 A.R. 1040–41.
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auditory hallucinations at the interview, Ms. E. reported that she frequently heard people
talking. ANP Boga also noted that memory was still a problem; Ms. E.’s impulsivity was
within normal limits and her judgment had improved to good, but her insight was marginal.
ANP Boga began Remeron for depression and anxiety and to help with sleep. She
continued Ms. E.’s Depakote, Prazosin, and Klonopin.56
On January 23, 2015, Ms. E. followed up with ANP Boga. She reported “doing
much better for the most part, but for about four days I could not sleep.” Ms. E. also
reported that her anxiety, irritability, and nightmares had all decreased. On examination,
ANP Boga observed that Ms. E. was on time, adequately groomed and dressed for the
weather, and was better organized, with much less pressured speech and no crying at
the appointment. ANP Boga noted that Ms. E.’s judgment and insight had improved. She
increased Ms. E.’s Remeron prescription at the appointment.57
On February 26, 2015, Ms. E. saw ANP Boga. She reported “doing better,” but
that her Remeron prescription was too much and she was feeling groggy during the day.
On examination, ANP Boga observed that Ms. E. continued to have problems with
memory and anxiety, but that both were improving. ANP Boga decreased Ms. E.’s
Remeron prescription.58 On the same date, ANP Boga checked certain boxes on an
attorney-drafted drug and alcohol statement. She indicated that Ms. E. was totally
disabled without consideration of any past or present drug and/or alcohol use. She also
56 A.R. 1051–53.
57 A.R. 1039.
58 A.R. 1037–38.
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indicated that drug and/or alcohol use was not a material cause of Ms. E.’s disability
because “my patient is currently not using drugs and/or alcohol and remains disabled.”59
On March 18, 2015, Ms. E. followed up with ANP Boga. She reported “feeling so
much better.” On examination, ANP Boga observed that Ms. E. was on time; adequately
groomed and dressed for the weather; bright and cheerful; pleasant and cooperative with
organized and goal-oriented thoughts; in an euthymic mood; and had normal speech.
She noted that Ms. E.’s judgment and insight had also improved.60
On March 23, 2015, Ms. E. saw Nina Wendt, Ph.D., at Foundations, LLC, for a
mental status examination ordered by Disability Determination Services “to assist in
determining if [Ms. E. was] able to reason or make occupational, personal, or social
adjustments, to evaluate whether she [was] capable of handling her finances in her own
best interest, and to evaluate her ability to do work-related activities.” Dr. Wendt reported
conducting an interview for one and one-half hours and reviewing records for one-eighth
of an hour. Dr. Wendt noted that “[t]here were no documents available concerning [Ms.
E.’s] past hospitalizations or her current mental health treatment. Viewing some of these
documents would have aided in being able to give [Ms. E.] a more accurate diagnosis.”
Dr. Wendt also noted that Ms. E. reported hospitalizations in Fairbanks in 2004 and 2012
for suicidal ideation, but Dr. Wendt stated, “[t]here were no records available to determine
her state of mind or diagnoses during those hospitalizations.” During the interview, Ms.
E. reported having a DUI in 2010 and completing treatment at the Ralph Perdue Center
59 A.R. 674–75.
60 A.R. 1035–36.
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in 2012 or 2013. She also reported having two felony drug charges and being addicted
to crack cocaine in the past, but she also reported that she had not used that substance
for more than five years. Ms. E. reported that her medications helped her sleep and that
she was able to clean her house and cook, but that she did not leave her house very often
because of anxiety. She reported moving her furniture frequently and painting her walls
every two weeks, “because she enjoy[ed] painting and it help[ed] her keep focused.” Ms.
E. also reported that she had not handled money for many years, but she thought she
would have difficulty doing so due to concentration problems “to the point that she cannot
count change.” On examination, Dr. Wendt observed that Ms. E. was oriented to person,
place, and time. Dr. Wendt noted that Ms. E. had problems with her recent, immediate,
and remote memories, but that her memory was sufficient to answer questions and follow
the line of discussion. Specifically, Dr. Wendt noted that Ms. E. had “concentration
problems as demonstrated by insufficiencies in counting backwards from 100 by sevens,
performing serial threes, and counting backwards from 100.” Dr. Wendt also noted that
there were “no noticeable signs of psychotic thought process or content,” but that Ms. E.
was “hypervigilant and [had] an exaggerated startle response, problems with
concentration, and sleep problems.” Dr. Wendt noted that Ms. E.’s descriptions
suggested manic episodes with psychosis, but that Ms. E. “did not have manic symptoms
at the time of the evaluation.” She also observed that Ms. E.’s “mannerisms and affect
seemed to indicate” that Ms. E. was depressed at the time of the evaluation. Dr. Wendt
noted that Ms. E. also “has severe PTSD symptoms that cause nightmares, intrusive
thoughts, avoidance symptoms, negative alterations in cognitions and mood, and arousal
and hyperactivity symptoms.” In summary, Dr. Wendt opined that Ms. E. was a
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“chronically homeless and mentally ill woman who [had] not previously had the emotional
and physical resources to adequately access services,” was unable to “reason or make
occupational, personal, or social adjustments,” and was unable to handle her own
finances. She opined that Ms. E.’s “medication regimen seems to be helping her PTSD,
depression, and psychotic symptoms.”61 Dr. Wendt also completed a medical source
statement in which she opined that Ms. E.’s ability to carry out simple instructions; to
make judgments on simple work-related decisions; interact appropriately with supervisors
and co-workers; and respond appropriately to usual work situations and changes in a
routine work setting were all markedly impaired due to Ms. E.’s PTSD and bipolar
symptoms.62
On April 17, 2015, Ms. E. followed up with ANP Boga. She reported being denied
social security disability benefits. On examination, ANP Boga noted that Ms. E. was very
distraught at the appointment, cried at the appointment, and that she was “certainly at-
risk for decompensation.” But, she also noted that Ms. E. planned to care for her 1-year
old grandson for two weeks, and Ms. E. was “very excited” about that. ANP Boga made
no changes to Ms. E.’s prescriptions.63
On May 22, 2015, Ms. E. saw ANP Boga. She reported knee problems. ANP Boga
noted that “[w]hile [Ms. E.’s] mental status is improving, she remains at-risk for
61 A.R. 684–88.
62 A.R. 679–83.
63 A.R. 1033–34.
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decompensation, particularly when her friend leaves” as he “will not be able to support
her any longer.”64
On May 29, 2015, Ms. E. saw Kimberly Sonderland, ANP, at ICHC. She reported
knee pain. On examination, ANP Sonderland observed no depression, anxiety, or
agitation. She also noted intact judgment and insight.65
On June 25, 2015, Ms. E. followed up with ANP Boga. She reported that she was
depressed and sleepy. She also reported that she could not find work, she had been
denied social security disability benefits and chronic acute medical assistance (“CAMA”),
and her friend that had been supporting her was leaving the State. On examination, ANP
Boga observed that Ms. E. was “very distressed” and quite tearful. She also noted that
Ms. E.’s thoughts were organized and goal-directed, her speech was pressured, and her
judgment and insight were adequate. ANP Boga opined that Ms. E. had decompensated.
She opined, “I do not believe that [Ms. E.] is capable of working full time to support
herself.” Although ANP Boga considered Ms. E. to be at little to no risk of self-harm at
the time, she opined that Ms. E. would be at risk for self-harm if she was not able to obtain
employment or a means of support.66
On July 30, 2015, Ms. E. followed up with ANP Boga. She reported having
nightmares and being afraid to go to sleep. On examination, ANP Boga observed that
Ms. E. was on time and adequately groomed and dressed, but she was “quite distressed,”
64 A.R. 1031–32.
65 A.R. 808–11.
66 A.R. 1029–30.
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was feeling “hopeless,” and was “very anxious.” She noted that Ms. E. had pressured
speech, tangential thoughts, and poor judgment and insight. ANP Boga also noted that
Ms. E. was not taking her medications as prescribed.67
On October 26, 2015, Ms. E. saw Ambria Ptacek, PA-C, for bilateral foot pain. On
examination, Ms. E. was “in no acute distress,” was alert and oriented, and walked with
a limp.68
On October 29, 2015, Ms. E. followed up with ANP Boga. She reported that she
continued to volunteer at a homeless shelter and after starting to take her Prazosin
prescription again, her nightmares decreased. ANP Boga noted that Ms. E. remained
anxious, but less so. She opined that Ms. E. remained disabled. She made no changes
to Ms. E.’s prescriptions.69
On December 17, 2015, Ms. E. saw ANP Boga. She reported being worried about
an upcoming psychiatrist interview. On examination, ANP Boga observed that Ms. E. was
on time and groomed and dressed appropriately. ANP Boga also observed that Ms. E.’s
speech was pressured and she was somewhat tangential. She noted that Ms. E. was
tearful and had difficulty concentrating, but reported she was sleeping well and displayed
good judgment and adequate insight. ANP Boga made no changes to Ms. E.’s
prescriptions.70
67 A.R. 1027–28.
68 A.R. 704.
69 A.R. 1025–26.
70 A.R. 1023–24.
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On January 12, 2016, Ms. E. was interviewed by Azariah Eshkenazi, M.D.,
assistant professor of psychiatry at Mount Sinai School of Medicine, via telephone for a
psychiatric evaluation. Dr. Eshkenazi noted that he initially conducted an interview via
Skype with Ms. E. on January 7, 2016, but during the interview Ms. E. “suddenly became
extremely agitated, anxious and irritable” and disconnected, thereby ending the interview.
Dr. Eshkenazi noted that he reviewed Ms. E.’s medical records and past history. On
examination, Dr. Eshkenazi noted that Ms. E. “sounded very anxious and tense, and it
was clear that she has difficulty concentrating.” He reported that Ms. E. did not know the
date, but she knew that President Obama was the sitting President. He noted that Ms.
E.’s speech was coherent; thought processes were responsive; memory was fair; affect
labile; and her judgment and insight into her condition were “fair, at best.” Dr. Eshkenazi
also noted that Ms. E. “easily became irritable and then depressed, and there were signs
of some crying,” but no evidence of psychosis during the evaluation. He diagnosed Ms.
E. with bipolar disorder and dysthymic disorder with generalized anxiety. Dr. Eshkenazi
opined that based on his review of the medical records and his evaluation, “from a
psychiatric point of view, [Ms. E.] is not able to be gainfully employed” and he did “not
anticipate improvement in her condition in the foreseeable future.” He did note that Ms.
E. was able to manage her funds.71
On February 18, 2016, Ms. E. saw ANP Boga. She reported having nightmares
and being afraid to go to sleep. ANP Boga observed that Ms. E. was very tearful and
“sobbing throughout the entire interview.” She also noted that the effectiveness of Ms.
71 A.R. 714–22.
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E.’s medications was “marginal,” but that Ms. E. reported taking her medications as
prescribed. ANP Boga noted that she believed “that the stress and worry about her
finances currently [was] a big problem for [Ms. E.].”72 On the same date, ANP Boga
completed a mental impairment questionnaire. ANP Boga noted that Ms. E. had memory
problems, mood swings, sleep disturbances and nightmares, and problems with
concentration, processing, and interaction. ANP Boga opined that Ms. E.’s ability to
understand, remember, and carry out detailed instructions; sustain an ordinary routine
without supervision; perform activities within a schedule and consistently be punctual;
complete a workday without interruption from psychological symptoms; perform at a
consistent pace without rest periods of unreasonable length or frequency; interact
appropriately with the public; accept instructions and respond appropriately to criticism
from supervisors; respond to workplace changes; be aware of hazards and take
appropriate precautions; travel to unfamiliar places or use public transportation; set
realistic goals; and make plans independently were markedly impaired. ANP Boga opined
that Ms. E. would be absent from work as a result of her mental impairments more than
three times per month.73
On March 21, 2016, Ms. E. went to the emergency department at Fairbanks
Memorial Hospital. She reported chronic foot pain. She also reported being a social
drinker.74
72 A.R. 1021–22.
73 A.R. 709–13.
74 A.R. 749.
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On April 4, 2016, Ms. E. followed up with Jodi Oakland, SPT, at Fairbanks Memorial
Hospital’s Rehabilitation Department. She participated in physical therapy for foot and
joint pain. PT Oakland observed that Ms. E. “seem[ed] to have difficulty with balance
today, as she often is unable to stabilize and seems “clumsy.” This may be due to her
taking medication prior to session. [Ms. E.’s] pupils were significantly dilated compared
to previous treatment sessions, and [Ms. E.] seemed more argumentative than usual and
not as willing to complete PT exercises.”75
On April 20, 2016, Ms. E. followed up with ANP Boga. Ms. E. reported sleeping
well. On examination, ANP Boga noted that Ms. E.’s speech was “somewhat pressured
though no more so than usual.” She also noted that Ms. E. was “a little bit tearful during
the interview, but she [was] not sobbing as she often does.” ANP Boga noted that Ms. E.
remained anxious, “but she [was] as stable . . . as I have ever seen her.” She made no
changes to Ms. E.’s medications.76
On April 29, 2016, Ms. E. visited Kimberly Sonderland, ANP, at ICHC. She reported
back pain. On physical examination, Ms. E. was in no acute distress with “no depression,
anxiety, or agitation” and displayed intact judgment and insight.77
On July 21, 2016, Ms. E. followed up with ANP Boga. She reported “falling a lot
and bruising [herself].” ANP Boga noted that Ms. E. was “somewhat distressed and
75 A.R. 895–99. Ms. E. initiated physical therapy on March 29, 2016. A.R. 900–04, 906–10.
She cancelled physical therapy appointments on April 8, 2016, April 11, 2016, and April 21,
2016. A.R. 904.
76 A.R. 1019–20.
77 A.R. 802–804.
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somewhat anxious, though these problems are in better control than they have been in
the past.” She also noted that anxiety when leaving home continued to be a problem for
Ms. E. ANP Boga made no changes to Ms. E.’s psychiatric diagnoses.78
On August 4, 2016, Ms. E. went to the emergency department at Fairbanks
Memorial Hospital. She reported nausea, dizziness, blurry vision, body aches, and lost
consciousness after being hit by a car while riding her bike. On examination, Ms. E.’s
mood and affect were quiet, drowsy, but responsive and appropriate, with intact judgment
and insight.79
On August 16, 2016, Ms. E. saw June Morgan, ANP, at ICHC. She reported
“running into things, distraction, short term memory” loss. She reported having a recent
bicycle collision with a motor vehicle on August 3, 2016 and was referred to FBK
Psych/Neuro for a neuro evaluation. She also reported drinking ½ of a pint of alcohol
daily.80 On physical examination, Ms. E. was in no acute distress with no depression,
anxiety or agitation observed, and intact judgment and insight.81
On September 14, 2016, Ms. E. visited ANP Boga. ANP Boga noted that Ms. E.
remained “very anxious with panic attacks and agoraphobia.” ANP Boga made no
changes to Ms. E.’s medications and noted that the neurologist would order labs.82
78 A.R. 1017–18.
79 A.R. 791–93.
80 On September 29, 2016, Ms. E. saw Daniel Johnson, D.O., at McKinley Orthopedics & Sports
Medicine, LLC. She reported that she was not using alcohol at that time. A.R. 834.
81 A.R. 787–90.
82 A.R. 1015–16.
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On October 12, 2016, Ms. E. followed up with ANP Boga. She reported being
worried about her health and her relationship with her daughter. On examination, ANP
Boga observed that Ms. E. was “very distraught,” “sobbing,” “tangential, and somewhat
disorganized” with her thoughts. ANP Boga noted that Ms. E. displayed high
impulsiveness and her insight and judgment were “less than adequate.” ANP Boga noted
that while Ms. E. continued to take her medications as prescribed, their effectiveness was
marginal. ANP Boga reported that Ms. E. requested no changes be made to her
prescriptions.83
On December 14, 2016, Ms. E. saw ANP Boga. She reported having panic attacks.
ANP Boga noted that Ms. E. “remains very distraught, though she is not crying today.”
ANP Boga also observed that Ms. E.’s “impulsivity is high” and her “insight and judgment
are less than adequate.” Ms. E. requested no changes be made to her medications. ANP
Boga opined that the medications were marginally effective.84
On February 15, 2017, Ms. E. went to the emergency department at Fairbanks
Memorial Hospital. She reported right lower jaw pain secondary to poor dentition. On
physical examination, the attending doctor observed that Ms. E. was “awake, alert, in no
acute distress.”85
83 A.R. 1013–14.
84 A.R. 1011–12.
85 A.R. 918–20. Ms. E. went to the emergency department at Fairbanks Memorial Hospital on
May 14, 2017 for chronic back pain. On physical examination, Ms. E. was awake and alert, but
“uncomfortable, sedated seeming/tired.” A.R. 914–15.
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On February 22, 2017, Ms. E. visited ANP Boga. On examination, ANP Boga
observed that Ms. E.’s judgment and insight were adequate and she was organized and
oriented x 4. ANP Boga reported that Ms. E.’s mental status was improving. Ms. E.
denied the use of alcohol or street drugs. ANP Boga again noted that Ms. E. wanted no
changes to her prescriptions.86
On April 12, 2017, Ms. E. followed up with ANP Boga. She reported her mood had
improved, she was crying less, had more energy, and was sleeping better. She reported
continuing to have flashbacks and nightmares and continuing to “experience difficulty
being in a closed place for a specific length of time.” ANP Boga noted that Ms. E. was
“as stable psychiatrically at this point than I have seen her.” ANP Boga continued Ms.
E.’s prescriptions.87
On June 15, 2017, Ms. E. followed up with ANP Boga. She reported feeling
hopeless and helpless due to situational problems and that she continued to have
flashbacks and nightmares, but she denied thoughts of self-harm. ANP Boga noted that
Ms. E. was “very labile today and very distressed.” She made no change to Ms. E.’s
medications.88
86 A.R. 1009–10.
87 A.R. 1006–08.
88 A.R. 1003–05.
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On July 1, 2017, Ms. E. went to the emergency department at Fairbanks Memorial
Hospital. She reported “falling asleep all the time” and neck pain. She tested positive for
methamphetamines.89
Function Reports
On February 25, 2013, Ms. E. completed a function report. She reported living in
a motel. She reported having no problems performing her personal care and that she
spent her day exercising, watching television, and reading. She also reported being able
to prepare food and clean her room. Ms. E. indicated that she was able to go outside,
rock climb, swim, bike ride, walk, use public transportation, shop in stores, and ride in a
car. She reported getting “so depressed sometimes that I will drink to get some relief then
I don’t stop drinking [until] all the money’s gone.” She indicated that she did not like being
around people and that depression and panic attacks made it difficult for her to “go out.”
Ms. E. also indicated that her conditions affected her memory, concentration, and ability
to complete tasks, follow instructions, and get along with others.90
On February 28, 2013, Chelsie E., Ms. E.’s daughter, completed a function report
on her mother’s behalf. She indicated that she spent “a couple hours a month” with her
mother and that they ate and visited and watched television. Chelsie E. reported that Ms.
E. “hangs out at home”; had no problems with personal care; could do laundry and
cleaning; and could walk, rock climb, use public transportation, ride in a car, and ride a
89 A.R. 949–55.
90 A.R. 441–48.
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bicycle. She indicated that Ms. E.’s conditions affected her concentration and her ability
to complete tasks and get along with others.91
Hearing Testimony on August 16, 2017
On August 16, 2017, Ms. E. testified by video from Fairbanks with representation.
She testified that she did painting and cleaning for her landlord and that she was able to
set her own schedule “because he lets me work when I want to because sometimes I
can’t go out of the house or if I feel like I’m on a time clock, I panic because . . . when I
clock in [I feel] that I’m trapped.” She testified that she felt she could not leave her house
two or three days per week or about nine days per month. Ms. E. testified that her
medications helped with her mood fluctuations, but that they were “getting less and less
helpful.” She indicated that she was living alone at the time of hearing and did her own
shopping, but usually went to the food bank because she didn’t like going to the store.
She testified that sometimes she “tore up” her apartment, but then she would “fix it up.”
Ms. E. also testified that she was physically able to do her laundry and perform personal
care, but she would do her laundry in the bathtub so she wouldn’t “have to go out” and
was “scared when [she] took a shower” so she took only quick showers. She reported
that she liked to draw, but she didn’t read “because I can’t remember the first page.”92
Colette Valette, Ph.D., testified as the psychological expert. Based on her review
of the record, Dr. Valette opined that Ms. E.’s severe mental impairments included alcohol
dependence in early remission; methamphetamine abuse; alcoholism; poly substance
91 A.R. 449–56.
92 A.R. 70–81.
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dependence; cocaine dependence reportedly in remission; depressive disorder atypical;
dysthymic disorder; bipolar disorder not otherwise specified; generalized anxiety disorder;
post-traumatic stress disorder; and insomnia. Dr. Valette opined that Ms. E. did not meet
or equal any of the listings for mental health impairments and noted that Ms. E. reported
paying bills, using public transportation, and shopping in stores. Dr. Valette also noted
that “no problems were reported in any of the exhibits interacting with professional doctors
[and Ms. E.] sat in the waiting room.” She also noted that when Ms. E. “went to doctors
for physical ailments, there were no problems noted with her being distracted, having
attention problems, needing directions repeated.” Dr. Valette testified that she disagreed
with Dr. Wendt’s conclusions and recommendations. She testified that Dr. Wendt
reported in her evaluation that Ms. E.’s mental status was normal, her thought content
was adequate, she could complete her ADLs, she was cooperative, and her memory was
fine. Dr. Valette noted that the only difficulty Dr. Wendt noted objectively during the
evaluation was that Ms. E. could not do serial sevens. Dr. Valette opined that a failure to
do serial sevens “doesn’t mean that the person has attention difficulties” and that “Dr.
Wendt [was] basing limitations on subjective complaints of [Ms. E.].” Dr. Valette
concluded that Ms. E. had no mental health limitations “because it’s difficult to come up
with a significant or clear diagnosis when substance abuse is involved throughout the
entire record” and that “the objective evidence show[ed] that [Ms. E. was] functioning well”
despite her mental health diagnoses.93
93 A.R. 43–63.
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William Weis testified as the vocational expert. Based on ALJ Hebda’s
hypothetical,94 VE Weis opined that an individual of Ms. E.’s age, education, and past
work experience could perform work as a janitor, cleaner II, or laundry worker.95
IV. DISCUSSION
Ms. E. is represented by counsel in this appeal. In her opening brief, she asserts
that the ALJ “failed to fully and fairly develop the record with respect to consultative
examining psychologist Nina Wendt, Ph.D., as required by regulations, and as specifically
mandated by the Appeals Council when it vacated and remanded the 2015 Unfavorable
Decision.”96 The Commissioner contests Ms. E.’s assertions.97
A. The ALJ Failed to Comply with 20 C.F.R. § 416.917
Ms. E. asserts that the ALJ failed to comply with the Appeals Council remand
instructions regarding Dr. Wendt’s consultative examining report. Specifically, Ms. E.
alleges that “the commissioner did not comply with regulations to prepare Dr. Wendt, then
the agency discounted Dr. Wendt’s opinion because of the agency’s own failing in
94 The ALJ’s hypothetical was as follows:
I have an individual of the claimant’s age, education and past work experience
who would be able to perform medium level work as defined by the Social
Security Administration and with that, we would prohibit the climbing of ladders,
ropes and scaffolding; and we would have the avoidance of all exposure to
unprotected heights and hazardous machinery. A.R. 82.
95 A.R. 82–83.
96 Docket 15 at 1, 9–20.
97 Docket 17 at 4–20.
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preparing her as it should have done.”98 The Commissioner makes several arguments,
including: (1) the Court has no jurisdiction to review the ALJ’s compliance with the
Appeals Council’s 2016 remand order, and (2) 20 C.F.R. § 416.917 does not require the
Commissioner “to send a consultative examiner all of the available medical records much
less any medical records.”99 As set forth below, the Court concludes that the ALJ erred
by failing to provide Dr. Wendt with Ms. E.’s mental health records in violation of 20 C.F.R.
§ 416.917. The Court reverses the ALJ’s decision based on that error.
1. This Court Lacks Jurisdiction to Review the Appeals Council’s 2016
Remand Order
In the discussion of her argument, Ms. E. asserts that the ALJ failed to comply with
the Appeals Council’s instructions on remand.100 The Ninth Circuit has held that a court
does not have jurisdiction to review a decision of the Appeals Council denying a request
for review of an ALJ's decision, because the Appeals Council decision is a non-final
agency action.101 When the Appeals Council declines review, “the ALJ's decision
becomes the final decision of the Commissioner,” and this Court reviews that decision for
substantial evidence, based on the record as a whole.102 In this case, the Commissioner
argues that “whether the ALJ’s decision in 2017 complied with Appeals Council’s 2016
98 Docket 15 at 9–11.
99 Docket 17 at 5–12.
100 Docket 15 at 9.
101 42 U.S.C. § 405(g); see also Brewes v. Comm’r of Social Sec. Admin., 682 F.3d 1157, 1161–
62 (9th Cir. 2012); see also Taylor v. Comm'r of Soc. Sec. Admin., 659 F.3d 1228, 1231 (9th Cir.
2011).
102 Id. at 1162; see also Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999).
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remand order is an issue solely within the purview of the Appeals Council’s 2018
consideration of that decision.”103 The Court agrees.104 This Court declines to evaluate
whether the ALJ’s second decision complied with the remand order of the Appeals
Council.
2. The ALJ Failed to Comply with 20 C.F.R. § 416.917
Although this Court declines to review the ALJ’s compliance with the remand order,
we “independently determine whether the Commissioner's decision (1) is free of legal
error and (2) is supported by substantial evidence.”105 In his second decision, the ALJ
gave Dr. Wendt’s opinion “limited weight” for the “reasons that Dr. Valette expressed,
including normal mental status testing and a heavy reliance on [Ms. E.’s] self-reported
symptoms.”106 Dr. Wendt evaluated Ms. E. on March 23, 2015.107 She diagnosed Ms. E.
with posttraumatic stress disorder (PTSD) and “Bipolar I Disorder, Current episode
depressed, Rule Out.” Based on a mental status examination, Dr. Wendt opined that Ms.
103 Docket 17 at 6–7.
104 The Commissioner cites to unpublished opinions noting that in the Ninth Circuit and among
district courts in the Ninth Circuit, the courts have rejected “failure to follow remand orders”
arguments. See, e.g., Tyler v. Astrue, 305 F. App’x 331, 332 (9th Cir. 2008) (unpublished) (“The
district court properly declined to evaluate whether the ALJ’s second decision satisfied the
demands of the Appeal Council’s remand.”); Webber v. Berryhill, 2017 WL 722593, at *3 (E.D.
Wash. Feb. 23, 2017); Nickolite v. Colvin, 2015 WL 1467201, at *2 (D. Or. March 30, 2015);
Lara v. Colvin, 2013 WL 5520220, at *2 (C.D. Cal. Oct. 3, 2013). Unpublished dispositions and
orders of the Ninth Circuit Court issued on or after January 1, 2007 may be cited by the courts
of the Ninth Circuit. U.S.Ct. of App., 9th Cir. Rule 36-3.
105 Brewes, 682 F.3d at 1161; Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996).
106 A.R. 25.
107 A.R. 684–88. The ALJ issued his first decision on March 19, 2015 and did not address Dr.
Wendt’s opinion in that decision. A.R. 139–50.
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E. was “a chronically homeless and mentally ill woman who has not previously had the
emotional and physical resources to adequately access services. She is unable to reason
or make occupational, personal, or social adjustments. She is unable to handle her own
finances and lives most of her life isolated from other people.” Dr. Wendt noted that she
lacked documents regarding Ms. E.’s past mental health hospitalizations for suicide
attempts in 2004 and 2012 and also lacked documents regarding Ms. E.’s “current mental
health treatment.” Dr. Wendt also noted that “[v]iewing some of these documents would
have aided in being able to give her a more accurate diagnosis.”108
As Ms. E. points out in her brief, the medical records that were not provided to Dr.
Wendt should have been in the ALJ’s record as of the January 2015 hearing.109 The
Commissioner does not dispute Ms. E.’s assertion that the ALJ did not provide medical
records to Dr. Wendt, but instead asserts that the agency was not required to provide any
documents and any failure to provide Dr. Wendt with medical records would be a harmless
“procedural error.”110
A federal agency is obligated to adhere to the regulations it promulgates.111
Pursuant to 20 C.F.R. § 416.917, the agency must provide consultative examiners with
108 A.R. 684–88.
109 Docket 15 at 13–14. In the record of the hearing transcript from January 12, 2015, Ms. E.’s
attorney confirmed that the ALJ had received records through September 18, 2014. A.R. 92–93.
110 Docket 17 at 11.
111 Sameena, Inc. v. U.S. Air Force, 147 F.3d 1148, 1153 (9th Cir. 1998) (citing Vitarelli v.
Seaton, 359 U.S. 535, 545 (1959)).
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“any necessary background information” concerning a claimant’s condition.112 And,
“necessary background information” has been interpreted by other courts to mean
medical records.113 Additionally, Ms. E. points out that pursuant to 20 C.F.R. § 416.919p,
if a consultative report “is inadequate or incomplete, [the ALJ] will contact the medical
source who performed the consultative examination, give an explanation of [his]
evidentiary needs, and ask that the medical source furnish the missing information or
prepare a revised report.”114 Here, the ALJ discounted Dr. Wendt’s opinion for relying
heavily on Ms. E.’s self-reports, yet Dr. Wendt’s examination report expressly lamented
the lack of documentation regarding Ms. E.’s past hospitalizations for suicide attempts as
well as records documenting Ms. E.’s mental health at the time of the evaluation.115
The Ninth Circuit has held that an agency abuses its discretion when it fails to
abide by its own regulations and that it is all the more important when “Congress has
explicitly directed that the agency’s procedures for assessing the work produced by
consultative examiners be prescribed by regulation.”116 In this case, the ALJ ordered a
112 20 C.F.R. §§ 416.917, 404.1517.
113 Peacock v. Comm’r of Soc. Sec. Admin., 2018 WL 2753151, at *6 (D. Ariz. June 6, 2018);
Brantley v. Comm’r of Soc. Sec., 637 Fed. Appx. 888, 894–95 (6th Cir. 2016) (The Social
Security Administration’s Program Operations Manual System (POMS) “specifically instructs
SSA employees to provide consultative examiners with ‘duplicates or summaries of relevant
evidence such as . . . [m]edical evidence of record including any medical opinions.’”); see also
Wilson v. Comm’r of Soc. Sec., 378 F. 3d 541, 546 (6th Cir. 2004) (“to recognize substantial
evidence as a defense to non-compliance with [the regulation at issue] would afford the
Commissioner the ability [to] violate the regulation with impunity and render the protections
promised therein illusory.”).
114 Docket 15 at 17 (citing 20 C.F.R. § 416.919p(b)).
115 A.R. 25, 684–87.
116 Reed v. Massanari, 270 F.3d 838, 843 (9th Cir. 2001) (citing Andriasian v. I.N.S., 180 F.3d
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consultative exam, apparently did not provide medical records that Dr. Wendt, as an
expert, considered critical, and then discounted Dr. Wendt’s opinions based in part on her
lack of objective findings.117 Dr. Wendt, therefore, based her assessment on an
incomplete picture of Ms. E.’s condition. While the Court cannot determine whether the
medical records that Dr. Wendt lacked would have influenced her opinion, the ALJ’s
reason for discounting Dr. Wendt’s opinion was in part the result of his failure to provide
Dr. Wendt with “necessary background information.”118 Therefore, the Court cannot
conclude that the ALJ’s reasoning was supported by substantial evidence and reverses
based on this error.
B. Scope of Remand
The “ordinary remand rule” applies to disability cases. Under this rule, if “the
reviewing court simply cannot evaluate the challenged agency action on the basis of the
record before it, the proper course, except in rare circumstances, is to remand to the
agency for additional investigation or explanation.”119 Here, the Court has found that, in
light of the record as a whole, the ALJ’s decision was not supported by substantial
evidence or free of legal error regarding Dr. Wendt’s consultative examination.
1033, 1046 (9th Cir. 1999)).
117 A.R. 23–25, 116, 143–50, 679–88.
118 See Peacock, 2018 WL 2753151, at *5 (specifically concluding that “the ALJ violated §
416.917 by failing to provide Dr. Cunningham with Plaintiff’s ‘necessary background
information,’ specifically his medical records.”); Deden v. Colvin, 2013 WL 6189954, at *5 (C.D.
Cal. Nov. 26, 2013) (noting that “background information is essential, because consultative
exams are utilized ‘to try to resolve a conflict or ambiguity if one exists’”).
119 Treichler, 775 F.3d at 1099 (quoting Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744
(1985)).
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Specifically, the agency did not provide Dr. Wendt with “necessary background
information” in violation of 20 C.F.R. § 416.917.
Ms. E. argues that this matter should be remanded for a de novo hearing and a
new decision.120 The Commissioner responds that the Court should affirm, or in the
alternative, the Court should remand for further administrative proceedings.121 Therefore,
the case will be remanded for the ALJ to order a new consultative examination providing
“all necessary background information,” including all of Ms. E.’s mental health medical
records in the agency’s record. Additionally, the ALJ should hold hearings and take new
testimony regarding Ms. E.’s mental health impairments, adjust the RFC as warranted,
and proceed to steps four or five as appropriate.
V. ORDER
The Court, having carefully reviewed the administrative record, finds that the ALJ’s
determinations are not free from legal error. Accordingly, IT IS ORDERED that Ms. E.’s
request for relief at Docket 15 is GRANTED, the Commissioner’s final decision is
VACATED, and the case is REMANDED to the SSA for further proceedings consistent
with this decision.
The Clerk of Court is directed to enter a final judgment accordingly.
DATED this 22nd day of November, 2019 at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
120 Docket 15 at 21.
121 Docket 17 at 19–20.
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