Keele v. SSA

SSD: ALJ Marchioro failed to properly evaluate Clinical Social Worker’s medical opinions under new regulations, remanded to determine whether Claimant is disabled… Johnston.

Patricia Keele is 53. She earned a GED in 1990. She has experience as a ballistic tech, assistant to disabled individuals, cashier, and hotel front desk clerk. She alleges that she became disabled 11/1/17 due to COPD, PTSD, depression, and anxiety. ALJ Stephen Marchioro determined following a hearing 4/16/20 that she had the severe impairments of COPD, PTSD, depression and anxiety but that she was not disabled because she had the RFC to perform her past work as a hand packager with Remmington Arms as well as jobs that existed in significant numbers in the national economy such as dining room attendant, store laborer, sandwich maker, mail clerk, collator operator, and routing clerk. The Appeals Council denied her request for review. She appeals, arguing that Marchioro failed to properly evaluate and credit Clinical Social Worker Christine Nicklay’s opinions in accordance with SSA’s new regulations.

Nicklay works at Western Montana Mental Health Center. She provided mental treatment to Keele for 17 months through 1/26/20. She assessed Keele’s basic mental functioning 10/16/19, filing out a Medical Source Statement in which she checked boxes indicating that Keele had “marked” limitations in her ability to understand and remember, “marked to extreme” limitations in her ability to concentrate, “moderate to extreme” limitations in her ability to tolerate social interaction, and “extreme limitations” in her ability to tolerate stress and adapt to changes in the work setting. She also assessed Keele’s ability to complete an 8-hour work day and 40-hour work week. She checked boxes indicating that her mental impairments would cause her to be off-task 60% of the work day and be unable to complete a regular 40-hour work week on a regular basis without missing more than 2 days per month because “loud noises, specific smells, and unfamiliar people” cause her to “experience dissociative symptoms.” Marchioro discounted her opinions.

Keele applied for SS after 3/27/17 and Marchioro was therefore required to apply the new SS regulations when he evaluated Nicklay’s opinions. They require an ALJ to consider and evaluate the persuasiveness of all medical opinions based on some or all of these factors:

1. Supportability of the opinion.

2. Consistency of the opinion.

3. The medical source’s relationship with the claimant (including length of the treatment, frequency of examinations, purpose of the treatment, extent of the treatment, and existence of examinations.

4. The medical source’s specialization.

5. The medical source’s familiarity with other evidence in the record.

6. The medical source’s familiarity with SSD requirements.

Supportability and consistency are the most important factors. 20 CFR 404.1520c(b)(2). An ALJ must consider & discuss the supportability and consistency factors in every case. Id. He is required to consider the other factors only if he is presented with contradictory but equally persuasive medical opinions on the same issue. Id.

The supportability factor looks inward at the medical evidence presented by the medical source in support of his or her opinions. A medical opinion that is supported by significant relevant medical evidence is more persuasive and a medical opinion that is not supported by relevant medical evidence. 404.1520c(c)(1).

The consistency factor looks outward. It compares the medical source’s opinion to other medical and non-medical evidence in the record. A medical opinion that is consistent with the other medical and non-medical evidence is more persuasive than a medical opinion that is not consistent with the other medical and non-medical evidence. 404.1520c(c)(2). The ALJ must explain how he considered the supportability and consistency factors and must support his analysis with substantial evidence. Machelle H. (D.Idaho 2021).

Marchioro failed to properly address the supportability factor. He concluded that Nicklay’s opinions were unsupported because they were “rendered on a pre-printed check box form.” Opinions by a health care provider on a pre-printed form may be entitled to substantial weight if they are supported by the provider’s treatment notes. Belinda K. (D.Mont. 2022); Talbott (D.Ariz. 2020) (citing Garrison (9th Cir. 2014). The record contains a significant number of treatment notes from Nicklay during that period 8/9/18 through 1/26/20. Marchioro failed to explain why her opinions were inconsistent with her own treatment notes. His failure to support his reasoning with substantial evidence was legal error. Belinda K. (citing Embrey (9th Cir. 1988).

Marchioro also failed to apply the consistency factor to all of Nicklay’s opinions. She opined that Keele’s impairments would cause her to be off-task 60% of an average work day and be absent from work more than 2 days per month. Marchioro made no attempt to explain why these opinions were inconsistent with the other medical and non-medical evidence and rejected them without citing any inconsistent evidence. His failure to support his reasoning with substantial evidence was legal error. Belinda K.

Marchioro’s error was not harmless. The vocational expert testified that Keele would be unable to sustain employment if she was “off-task more than about 10% of the work day in addition to normal work breaks” or absent from work more than “one to two days per month on a regular basis.”

“Remand for further administrative proceedings is appropriate if enhancement of the record would be useful.” Benecke (9th Cir. 2004). Remand for an award of benefits is appropriate only where there are no outstanding issues that must be resolved before a determination of disability can be made, and it is clear from the record that the ALJ would be required to find the claimant disabled if the ALJ had properly considered all of the evidence in the record. Dominguez (9th Cir. 2015).

There are outstanding issues to be resolved. It is not clear whether Keele is disabled. Remand for further proceedings is appropriate. On remand, the ALJ should consider and discuss whether Nicklay’s opinions are supported by her treatment notes and whether they are consistent with the other medical and non-medical evidence in the record.

Keele v. SSA, 44 MFR 273, 2/28/22.

Eric Rasmusson (Rasmusson Law Offices), Missoula, and Olinsky Law Group for Keele; Special AUSA Heidi Triesch.