Wright v. Colvin, No. 1:2015cv03143 - Document 23 (E.D. Wash. 2016)

Court Description: ORDER Granting Plaintiff's 16 Motion for Summary Judgment. Signed by Magistrate Judge John T. Rodgers. (MO, Courtroom Deputy)

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Wright v. Colvin Doc. 23 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 1 Sep 14, 2016 2 SEAN F. MCAVOY, CLERK 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 10 11 12 13 14 15 SHERRIL WRIGHT, No. 1:15-CV-03143-JTR Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT v. CAROLYN W. COLVIN, Commissioner of Social Security, Defendant. 16 17 BEFORE THE COURT are cross-Motions for Summary Judgment. ECF 18 No. 16, 20. Attorney D. James Tree represents Sherril Ann Wright (Plaintiff); 19 Special Assistant United States Attorney Daphne Banay represents the 20 Commissioner of Social Security (Defendant). The parties have consented to 21 proceed before a magistrate judge. ECF No. 5. After reviewing the administrative 22 record and the briefs filed by the parties, the Court GRANTS, in part, Plaintiff’s 23 Motion for Summary Judgment; DENIES Defendant’s Motion for Summary 24 Judgment; and REMANDS the matter to the Commissioner for additional 25 proceedings pursuant to 42 U.S.C. § 405(g). 26 27 28 JURISDICTION Plaintiff filed an application for Disability Insurance Benefits (DIB) on April 26, 2011, alleging disability since December 7, 2009, due to back pain, ORDER GRANTING PLAINTIFF’S MOTION . . . - 1 Dockets.Justia.com 1 leg/knee/foot pain, headaches/migraines, anxiety, and depression. Tr. 167-170, 2 219. The application was denied initially and upon reconsideration. Tr. 109-115, 3 117-121. Administrative Law Judge (ALJ) Virginia M. Robinson held a hearing 4 on August 13, 2013, and heard testimony from Plaintiff and vocational expert 5 Trevor Duncan. Tr. 35-72. The ALJ issued an unfavorable decision on December 6 19, 2013. Tr. 19-30. The Appeals Council denied review on June 15, 2015. Tr. 1- 7 6. The ALJ’s December 19, 2013, decision became the final decision of the 8 Commissioner, which is appealable to the district court pursuant to 42 U.S.C. § 9 405(g). Plaintiff filed this action for judicial review on August 12, 2015. ECF No. 10 1, 6. STATEMENT OF FACTS 11 The facts of the case are set forth in the administrative hearing transcript, the 12 13 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 14 here. 15 Plaintiff was 45 years old at the alleged onset date and turned 50 in 2014. 16 Tr. 167. Plaintiff completed the twelfth grade in 1983 and completed insurance 17 school in 1997. Tr. 220. She last worked as a food receiving clerk in December of 18 2009. Tr. 219-220. She reported she stopped working because of her condition. 19 Tr. 219. 20 21 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 22 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 23 1039 (9th Cir. 1995). The Court reviews the ALJ’s determinations of law de novo, 24 deferring to a reasonable interpretation of the statutes. McNatt v. Apfel, 201 F.3d 25 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is 26 not supported by substantial evidence or if it is based on legal error. Tackett v. 27 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as 28 being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put ORDER GRANTING PLAINTIFF’S MOTION . . . - 2 1 another way, substantial evidence is such relevant evidence as a reasonable mind 2 might accept as adequate to support a conclusion. Richardson v. Perales, 402 3 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational 4 interpretation, the court may not substitute its judgment for that of the ALJ. 5 Tackett, 180 F.3d at 1097. Nevertheless, a decision supported by substantial 6 evidence will be set aside if the proper legal standards were not applied in 7 weighing the evidence and making the decision. Brawner v. Secretary of Health 8 and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). If substantial evidence 9 supports the administrative findings, or if conflicting evidence supports a finding 10 of either disability or non-disability, the ALJ’s determination is conclusive. 11 Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). 12 SEQUENTIAL EVALUATION PROCESS 13 The Commissioner has established a five-step sequential evaluation process 14 for determining whether a person is disabled. 20 C.F.R. § 404.1520(a); see Bowen 15 v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through four, the burden of 16 proof rests upon the claimant to establish a prima facie case of entitlement to 17 disability benefits. Tackett, 180 F.3d at 1098-1099. This burden is met once the 18 claimant establishes that physical or mental impairments prevent her from 19 engaging in her previous occupations. 20 C.F.R. § 404.1520(a)(4). If the claimant 20 cannot do her past relevant work, the ALJ proceeds to step five, and the burden 21 shifts to the Commissioner to show that (1) the claimant can make an adjustment to 22 other work, and (2) specific jobs exist in the national economy which the claimant 23 can perform. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193-1194 24 (2004). If the claimant cannot make an adjustment to other work in the national 25 economy, a finding of “disabled” is made. 20 C.F.R. § 404.1520(a)(4)(v). 26 27 28 ADMINISTRATIVE DECISION On December 19, 2013, the ALJ issued a decision finding Plaintiff was not disabled as defined in the Social Security Act. ORDER GRANTING PLAINTIFF’S MOTION . . . - 3 1 2 At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since December 7, 2009, the alleged date of onset. Tr. 21. 3 At step two, the ALJ determined Plaintiff had the following severe 4 impairments: degenerative disc disease, affective disorder, and anxiety disorder. 5 Tr. 21. 6 At step three, the ALJ found Plaintiff did not have an impairment or 7 combination of impairments that met or medically equaled the severity of one of 8 the listed impairments. Tr. 22. 9 At step four, the ALJ assessed Plaintiff’s residual function capacity and 10 determined she could perform a range of light work with the following limitations: 11 [L]ifting and carrying 20 pounds occasionally and up to 10 pounds frequently. She can stand and/or walk for approximately 6 hours and sit for approximately 6 hours in an eight-hour workday with normal breaks. She can frequently climb ramps or stairs. She can occasionally climb ladders, ropes, or scaffolds. She can occasionally stoop, kneel, crouch, or crawl. She should avoid concentrated exposure to excessive vibration and workplace hazards such as dangerous machinery and unprotected heights. She can perform simple tasks and well-learned tasks. She can have superficial interaction with the public and coworkers. 12 13 14 15 16 17 18 19 Tr. 23-24. The ALJ identified Plaintiff’s past relevant work as receiving clerk, 20 stock clerk, and retail manager and concluded that Plaintiff was not able to perform 21 any of this past relevant work. Tr. 28. 22 At step five, the ALJ determined that, considering Plaintiff’s age, education, 23 work experience and residual functional capacity, and based on the testimony of 24 the vocational expert, there were other jobs that exist in significant numbers in the 25 national economy Plaintiff could perform, including the jobs of production 26 assembler, hand packager, and mail clerk. Tr. 29. The ALJ concluded Plaintiff 27 was not under a disability within the meaning of the Social Security Act at any 28 time from the alleged date of onset, December 7, 2009, through the date of the ORDER GRANTING PLAINTIFF’S MOTION . . . - 4 1 ALJ’s decision, December 19, 2013. Tr. 30. 2 ISSUES The question presented is whether substantial evidence supports the ALJ’s 3 4 decision denying benefits and, if so, whether that decision is based on proper legal 5 standards. Plaintiff contends the ALJ erred by (1) failing to properly weigh 6 medical source opinions, and (2) failing to properly consider the credibility of 7 Plaintiff and Plaintiff’s spouse. Additionally, Plaintiff contends the Appeals 8 Council erred by failing to consider the opinion of John Lyzanchuk, D.O. DISCUSSION 9 10 11 A. Medical Source Opinions Plaintiff argues that the ALJ failed to properly consider and weigh the 12 medical opinions expressed by T.H. Palmatier, M.D., Carl Cowin, ARNP-C, and 13 Jesse McClelland, M.D. ECF No. 16 at 13-16. 14 In weighing medical source opinions, the ALJ should distinguish between 15 three different types of physicians: (1) treating physicians, who actually treat the 16 claimant; (2) examining physicians, who examine but do not treat the claimant; 17 and, (3) non-examining physicians who neither treat nor examine the claimant. 18 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). The ALJ should give more 19 weight to the opinion of a treating physician than to the opinion of an examining 20 physician. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). The ALJ should give 21 more weight to the opinion of an examining physician than to the opinion of a non- 22 examining physician. Id. 23 When a treating physician’s opinion is not contradicted by another 24 physician, the ALJ may reject the opinion only for “clear and convincing” reasons. 25 Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). When a treating 26 physician’s opinion is contradicted by another physician, the ALJ is only required 27 to provide “specific and legitimate reasons” for rejecting the opinion of the treating 28 physician. Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983). Likewise, when ORDER GRANTING PLAINTIFF’S MOTION . . . - 5 1 an examining physician’s opinion is not contradicted by another physician, the 2 ALJ may reject the opinion only for “clear and convincing” reasons. Lester, 81 3 F.2d at 830. When an examining physician’s opinion is contradicted by another 4 physician, the ALJ is only required to provide “specific and legitimate reasons” for 5 rejecting the opinion of the examining physician. Id. at 830-831. 6 The specific and legitimate standard can be met by the ALJ setting out a 7 detailed and thorough summary of the facts and conflicting clinical evidence, 8 stating his interpretation thereof, and making findings. Magallanes v. Bowen, 881 9 F.2d 747, 751 (9th Cir. 1989). The ALJ is required to do more than offer her 10 conclusions, she “must set forth [her] interpretations and explain why they, rather 11 than the doctors’, are correct.” Embrey v. Bowen, 849 F.2d 418, 421-422 (9th Cir. 12 1988). 13 1. T.H. Palmatier, M.D., and Carl Cowin, ARNP-C 14 Dr. Palmatier, along with Carl Cowin, ARNP-C, were Plaintiff’s providers 15 at Yakima Worker Care. Tr. 300-303. On September 2, 2010, Dr. Palmatier and 16 Nurse Cowin stated “[t]he light duty job descriptions were reviewed and the 17 patient is unable to perform any of them at this time.” Tr. 300. On November 11, 18 2010, Nurse Cowin wrote a letter voicing surprise and questioning the August 21, 19 2010, independent medical examination which stated all of Plaintiff’s symptoms 20 were subjective. Tr. 304. On February 23, 2011, Nurse Cowin wrote a letter to 21 Plaintiff suggesting she apply for Social Security disability or apply for a separate 22 Labor and Industry claim on the grounds of an occupational disease. Tr. 305. 23 The ALJ’s decision is void of any reference to either Dr. Palmatier’s or 24 Nurse Cowin’s statements. The regulations require every medical opinion to be 25 evaluated, regardless of its source. 20 C.F.R. §§ 404.1527(c). Therefore, the ALJ’s 26 failure to address either of these opinions in her decision was in error. The case is 27 thereby remanded for the ALJ to properly consider all opinions of medical 28 providers throughout the record, including Dr. Palmatier and Nurse Cowin. ORDER GRANTING PLAINTIFF’S MOTION . . . - 6 1 2. Jesse McClelland, M.D. 2 On October 21, 2011, Dr. McClelland completed a consultative examination 3 at the request of Disability Determination Services (DDS). Tr. 325-330. He 4 diagnosed Plaintiff with depressive disorder, panic disorder with agoraphobia, and 5 a rule out diagnosis of attention deficit hyperactivity disorder. Tr. 329. Dr. 6 McClelland opined that Plaintiff should be able to perform simple and repetitive 7 tasks, but her abilities to complete detailed and complex tasks, accept instructions 8 from supervisors, and perform work activities on a consistent basis without special 9 additional instruction may be more difficult. Tr. 330. He also opined that Plaintiff 10 “would likely have difficulty interacting with coworkers and the public to some 11 extent,” “she may struggle to maintain regular attendance at the workplace,” 12 “[s]he may have interruptions in a normal workday,” she “would likely struggle to 13 deal with the usual stress encountered in the workplace,” and “[s]he has also had 14 problems dealing with change lately.” Id. 15 The ALJ gave this opinion “little weight” because (1) he relied “quiet 16 heavily” [sic] on Plaintiff’s self-reports, and (2) Plaintiff did not disclose to Dr. 17 McClelland her practice of traveling. Tr. 27-28. 18 The ALJ’s first reason for rejecting Dr. McClelland’s opinion, that it relied 19 heavily on Plaintiff’s self-reports, is not a legally sufficient reason. A doctor’s 20 opinion may be discounted if it relies on a claimant’s unreliable self-report. 21 Bayliss, 427 F.3d at 1217; Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 22 2008). However, the ALJ must provide the basis for her conclusion that the 23 opinion was based more heavily on a claimant’s self-reports. Ghanim v. Colvin, 24 763 F.3d 1154, 1162 (9th Cir. 2014). Here, the ALJ provided a basis for her 25 conclusion that Dr. McClelland’s opinion was based on Plaintiff’s self-reports, that 26 he had only seen Plaintiff once and that he had no treatment notes. Tr. 27. 27 However, the record does not support this conclusion. Dr. McClelland stated that 28 DDS had provided some medical clinic notes and part of the form SSA-3368. Tr. ORDER GRANTING PLAINTIFF’S MOTION . . . - 7 1 325. Therefore, the ALJ’s finding that Dr. McClelland did not review treatment 2 records is not supported by the record. Because the ALJ failed to provide a basis 3 supported by substantial evidence for her conclusion that Dr. McClelland relied on 4 Plaintiff’s self-reports, this reason does not meet the specific and legitimate 5 standard. The ALJ’s second reason for rejecting Dr. McClelland’s opinion, that it was 6 7 based on inaccurate representation of Plaintiff’s activities because Plaintiff failed 8 to disclose her frequent trips to her vacation trailer on Moses Lake, WA, and her 9 trips to Idaho in the last year, is an extension of the ALJ’s conclusion that Dr. 10 McClelland’s opinion was based on Plaintiff’s self-reports, and therefore not 11 legally sufficient. Tr. 28. First, Defendant concedes that the ALJ erred in 12 considering the trips to Idaho, which took place after Dr. McClelland’s opinion 13 was penned. ECF No. 20 at 13. As for the trips to Moses Lake, WA, prior to Dr. 14 McClelland’s opinion, this reasons extends the ALJ’s assumption that Dr. 15 McClelland relied on Plaintiff’s statements in forming his opinion and that her 16 statements were inaccurate. Because the ALJ failed to provide a reason supported 17 by substantial evidence that Dr. McClelland relied more heavily on Plaintiff’s self- 18 reports in forming his opinion, this reason fails to meet the specific and legitimate 19 standard. As such, the case is remanded for the ALJ to address Dr. McClelland’s 20 21 opinion. 22 B. Credibility 23 Plaintiff contests the ALJ’s adverse credibility determination in regards to 24 Plaintiff’s testimony and Plaintiff’s spouse’s testimony. ECF No. 16 at 4-13, 16- 25 19. 26 It is generally the province of the ALJ to make credibility determinations, 27 Andrews, 53 F.3d at 1039, but the ALJ’s findings must be supported by specific 28 cogent reasons, Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent ORDER GRANTING PLAINTIFF’S MOTION . . . - 8 1 affirmative evidence of malingering, the ALJ’s reasons for rejecting the claimant’s 2 testimony must be “specific, clear and convincing.” Smolen v. Chater, 80 F.3d 3 1273, 1281 (9th Cir. 1996); Lester, 81 F.3d at 834. “General findings are 4 insufficient: rather the ALJ must identify what testimony is not credible and what 5 evidence undermines the claimant’s complaints.” Lester, 81 F.3d at 834. An ALJ 6 must give “germane” reasons to discount evidence from a lay witness, such as a 7 spouse. Dodrill v. Shalala, 12 F.3d 915, 119 (9th Cir. 1993). 8 The evaluation of a claimant’s statements regarding limitations relies, in 9 part, on the assessment of the medical evidence. See 20 C.F.R. § 404.1529(c); 10 S.S.R. 16-3p. Therefore, in light of the case being remanded for the ALJ to 11 address the medical source opinions in the file, a new assessment of Plaintiff’s 12 subjective symptom statements is necessary to determine if they are consistent with 13 the record as a whole in accord with S.S.R. 16-3p. Likewise, upon remand, it is 14 necessary to reweigh the statements of Plaintiff’s spouse. 15 C. J.W. Lyzanchuk, D.O. 16 Plaintiff asserts that the Appeals Council erred in failing to specifically 17 address Dr. Lyzanchuk’s opinion in its order denying Plaintiff’s request for review. 18 ECF No. 16 at 19-20. 19 It is well established that, 20 23 [W]hen a claimant submits evidence for the first time to the Appeals Council, which considers that evidence in denying review of the ALJ’s decision, the new evidence is part of the administrative record, which the district court must consider in determining whether the Commissioner’s decision is supported by substantial evidence. 24 Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1159-1160 (9th Cir. 2012). 25 Indeed, this additional evidence is relevant “so long as it relates to the period on or 26 before the ALJ’s decision.” Id. at 1162 (citing 20 C.F.R. § 404.970(b)). 21 22 27 28 On March 12, 2014, after the ALJ’s decision, Dr. Lyzanchuk completed a medical report form stating Plaintiff would have to lie down during the day, ORDER GRANTING PLAINTIFF’S MOTION . . . - 9 1 require frequent position changes from standing to sitting to laying down four to 2 five times per day. Tr. 394. He also stated that Plaintiff could only stand for 20-30 3 minutes at one time and only sit for 20 minutes at a time without changing 4 positions. Tr. 395. Dr. Lyzachuck opined that if Plaintiff were currently 5 attempting to work a 40-hour work week, she would miss an average of four or 6 more days per month. Id. 7 Dr. Lyzachuck’s opinion was not available for review for the ALJ’s 8 December 19, 2013, opinion, Tr. 31-34, but it was associated with the record by 9 the Appeals Council, Tr. 4-5. Despite associating the evidence with the record, the 10 Appeals Council failed to discuss Dr. Lyzanchuk’s opinion. It simply stated that 11 “we considered the reasons you disagree with the decision and the additional 12 evidence listed on the enclosed Order of Appeals Council.” Tr. 1. Plaintiff asserts 13 that this constitutes an error on the part of the Appeals Council for failing to 14 properly consider the opinion prior to denying review. ECF No. 16 at 19. While, 15 this Court agrees that the Appeals Council’s silence regarding Dr. Lyzanchuk’s 16 opinion potentially runs afoul of 20 C.F.R. § 404.1527(c), stating that “[r]egardless 17 of its source, we will evaluate every medical opinion we receive,” this Court does 18 not have jurisdiction to review a decision of the Appeals Council denying a request 19 for review of an ALJ’s decision, because such a decision is a non-final agency 20 action. Taylor v. Comm’r of Soc. Sec. Admin., 659 F.3d 1228, 1231 (9th Cir. 21 2011); Brewes, 682 F.3d at 1159-1160. 22 Instead, this Court presumes that the Appeals Council considered Dr. 23 Lyzanchuk’s opinion because it was associated with the record. The opinion thus 24 becomes part of the body of evidence this Court considers when evaluating 25 whether substantial evidence supports the ALJ’s decision. Brewes, 682 F.3d at 26 1162. Since this case is being remanded, this opinion is part of the record for the 27 ALJ to consider in forming her new decision. 28 /// ORDER GRANTING PLAINTIFF’S MOTION . . . - 10 1 REMEDY 2 The decision whether to remand for further proceedings or reverse and 3 award benefits is within the discretion of the district court. McAllister v. Sullivan, 4 888 F.2d 599, 603 (9th Cir. 1989). An immediate award of benefits is appropriate 5 where “no useful purpose would be served by further administrative proceedings, 6 or where the record has been thoroughly developed,” Varney v. Secretary of Health 7 & Human Servs., 859 F.2d 1396, 1399 (9th Cir. 1988), or when the delay caused 8 by remand would be “unduly burdensome,” Terry v. Sullivan, 903 F.2d 1273, 1280 9 (9th Cir. 1990). See also Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014) 10 (noting that a district court may abuse its discretion not to remand for benefits 11 when all of these conditions are met). This policy is based on the “need to 12 expedite disability claims.” Varney, 859 F.2d at 1401. But where there are 13 outstanding issues that must be resolved before a determination can be made, and it 14 is not clear from the record that the ALJ would be required to find a claimant 15 disabled if all the evidence were properly evaluated, remand is appropriate. See 16 Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 211 17 F.3d 1172, 1179-80 (9th Cir. 2000). 18 In this case, it is not clear from the record that the ALJ would be required to 19 find Plaintiff disabled if all the evidence were properly evaluated. Further 20 proceedings are necessary for the ALJ to properly weigh the medical source 21 opinions in the record, including Dr. Lyzanchuk’s, to make a new assessment as to 22 whether Plaintiff’s subjective symptom statements are consistent with the record as 23 a whole,1 and to determine Plaintiff’s spouse’s credibility. The ALJ is further 24 25 1 On March 16, 2016, S.S.R. 16-3p “Evaluation of Symptoms in Disability 26 Claims” became effective, eliminating the term “credibility” from the Social 27 Security Administration’s policy, and clarifying “adjudicators will not assess an 28 individual’s overall character or truthfulness.” The ALJ’s December 2013 decision ORDER GRANTING PLAINTIFF’S MOTION . . . - 11 1 instructed to update the record with any outstanding evidence and take testimony 2 from a medical, a psychological, and a vocational expert at the hearing. 3 CONCLUSION 4 Accordingly, IT IS ORDERED: 5 1. 6 7 Defendant’s Motion for Summary Judgment, ECF No. 20, is DENIED. 2. Plaintiff’s Motion for Summary Judgment, ECF No. 16, is 8 GRANTED, in part, and the matter is REMANDED to the Commissioner for 9 additional proceedings consistent with this Order. 10 3. Application for attorney fees may be filed by separate motion. 11 The District Court Executive is directed to file this Order and provide a copy 12 to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff 13 and the file shall be CLOSED. 14 DATED September 14, 2016. 15 16 17 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 came over two years before S.S.R. 16-3p. Therefore, she could not have employed 27 the new S.S.R. in her original decision. However, upon remand, the ALJ should 28 address S.S.R. 16-3p as part of the review regarding Plaintiff’s alleged symptoms. ORDER GRANTING PLAINTIFF’S MOTION . . . - 12

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