Simpson v. Colvin (previously Astrue), No. 2:2012cv00417 - Document 33 (E.D. Wash. 2013)

Court Description: ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS granting 22 Motion for Summary Judgment; denying 26 Motion for Summary Judgment Signed by Senior Judge Fred Van Sickle. (VR, Courtroom Deputy)

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Simpson v. Colvin (previously Astrue) Doc. 33 1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON 6 7 DURWOOD A. SIMPSON, NO: CV-12-417-FVS Plaintiff, 8 v. 9 10 11 CAROLYN W. COLVIN, Acting Commissioner of Social Security, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS Defendant. 12 Before the Court are cross-motions for summary judgment, ECF Nos. 22, 13 26. The Court has reviewed the motions, the memoranda in support, the Plaintiff’s 14 reply memorandum, and the administrative record. 15 JURISDICTION 16 Plaintiff Durwood A. Simpson filed an application for Supplemental 17 Security Income (“SSI”) and Social Security Disability Insurance (“SSDI”) on 18 February 27, 2009. (Tr. 20, 128-30, 131-34.) Plaintiff alleged an onset date of 19 July 13, 2008, in both applications. (Tr. 128, 131.) Benefits were denied initially 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 1 Dockets.Justia.com 1 and on reconsideration. On January 6, 2010, Plaintiff timely requested a hearing 2 before an administrative law judge (“ALJ”). (Tr. 108-09.) A hearing was held 3 before ALJ James W. Sherry on February 4, 2011. (Tr. 40-75.) At that hearing, 4 testimony was taken from vocational expert Daniel McKinney, and the claimant, 5 Mr. Simpson. (Tr. 40.) The Plaintiff was not represented by counsel at the 6 hearing. (Tr. 20.) February 23, 2011, the ALJ issued a decision finding Plaintiff 7 not disabled. (Tr. 20-32.) The Appeals Council denied review. (Tr. 1-3.) This 8 matter is properly before this Court under 42 U.S.C. § 405(g). 9 STATEMENT OF THE CASE 10 The facts of this case are set forth in the administrative hearing transcripts 11 and record and will only be summarized here. The Plaintiff was forty-five years 12 old when he applied for benefits and was forty-seven years old when the ALJ 13 issued the decision. The Plaintiff currently is unemployed and lives with his 14 parents. The Plaintiff has not worked since he was employed as a graveyard clerk 15 and janitor at a convenience store in 2008. The Plaintiff describes being unable to 16 find work due to a variety of conditions, including severe back and knee pain. 17 18 STANDARD OF REVIEW Congress has provided a limited scope of judicial review of a 19 Commissioner’s decision. 42 U.S.C. § 405(g). A court must uphold the 20 Commissioner’s decision, made through an ALJ, when the determination is not ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 2 1 based on legal error and is supported by substantial evidence. See Jones v. 2 Heckler, 760 F.2d 993, 995 (9th Cir. 1985) (citing 42 U.S.C. § 405(g)). “The 3 [Commissioner’s] determination that a claimant is not disabled will be upheld if 4 the findings of fact are supported by substantial evidence.” Delgado v. Heckler, 5 722 F.2d 570, 572 (9th Cir. 1983) (citing 42 U.S.C. § 405(g)). Substantial 6 evidence is more than a mere scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 7 1119 n.10 (9th Cir. 1975), but less than a preponderance. McCallister v. Sullivan, 8 888 F.2d 599, 601-02 (9th Cir. 1989) (citing Desrosiers v. Secretary of Health and 9 Human Services, 846 F.2d 573, 576 (9th Cir. 1988)). Substantial evidence “means 10 such evidence as a reasonable mind might accept as adequate to support a 11 conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (citations omitted). 12 “[S]uch inferences and conclusions as the [Commissioner] may reasonably draw 13 from the evidence” will also be upheld. Mark v. Celebrezze, 348 F.2d 289, 293 14 (9th Cir. 1965). On review, the court considers the record as a whole, not just the 15 evidence supporting the decisions of the Commissioner. Weetman v. Sullivan, 877 16 F.2d 20, 22 (9th Cir. 1989) (quoting Kornock v. Harris, 648 F.2d 525, 526 (9th Cir. 17 1980)). 18 It is the role of the trier of fact, not this court, to resolve conflicts in 19 evidence. Richardson, 402 U.S. at 400. If evidence supports more than one 20 rational interpretation, the court may not substitute its judgment for that of the ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 3 1 Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 2 (9th Cir. 1984). Nevertheless, a decision supported by substantial evidence will 3 still be set aside if the proper legal standards were not applied in weighing the 4 evidence and making a decision. Brawner v. Sec’y of Health and Human Services, 5 839 F.2d 432, 433 (9th Cir. 1988). Thus, if there is substantial evidence to support 6 the administrative findings, or if there is conflicting evidence that will support a 7 finding of either disability or nondisability, the finding of the Commissioner is 8 conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 9 10 SEQUENTIAL PROCESS The Social Security Act (the “Act”) defines “disability” as the “inability to 11 engage in any substantial gainful activity by reason of any medically determinable 12 physical or mental impairment which can be expected to result in death or which 13 has lasted or can be expected to last for a continuous period of not less than 12 14 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a 15 Plaintiff shall be determined to be under a disability only if his impairments are of 16 such severity that Plaintiff is not only unable to do his previous work but cannot, 17 considering Plaintiff’s age, education and work experiences, engage in any other 18 substantial gainful work which exists in the national economy. 42 U.S.C. 19 §§ 423(d)(2)(A), 1382c(a)(3)(B). Thus, the definition of disability consists of both 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 4 1 medical and vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 2 (9th Cir. 2001). 3 The Commissioner has established a five-step sequential evaluation process 4 for determining whether a claimant is disabled. 20 C.F.R. § 416.920. Step one 5 determines if he or she is engaged in substantial gainful activities. If the claimant 6 is engaged in substantial gainful activities, benefits are denied. 20 C.F.R. §§ 7 404.1520(a)(4)(i), 416.920(a)(4)(i). 8 If the claimant is not engaged in substantial gainful activities, the decision 9 maker proceeds to step two and determines whether the claimant has a medically 10 severe impairment or combination of impairments. 20 C.F.R. 11 §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant does not have a severe 12 impairment or combination of impairments, the disability claim is denied. 13 If the impairment is severe, the evaluation proceeds to the third step, which 14 compares the claimant’s impairment with a number of listed impairments 15 acknowledged by the Commissioner to be so severe as to preclude substantial 16 gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); see also 20 17 C.F.R. § 404, Subpt. P, App. 1. If the impairment meets or equals one of the listed 18 impairments, the claimant is conclusively presumed to be disabled. 19 20 If the impairment is not one conclusively presumed to be disabling, the evaluation proceeds to the fourth step, which determines whether the impairment ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 5 1 prevents the claimant from performing work he or she has performed in the past. 2 If the plaintiff is able to perform his or her previous work, the claimant is not 3 disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At this step, the 4 claimant’s residual functional capacity (“RFC”) assessment is considered. 5 If the claimant cannot perform this work, the fifth and final step in the 6 process determines whether the claimant is able to perform other work in the 7 national economy in view of his or her residual functional capacity and age, 8 education and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 9 416.920(a)(4)(v); Bowen v. Yuckert, 482 U.S. 137 (1987). 10 The initial burden of proof rests upon the claimant to establish a prima facie 11 case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 12 (9th Cir. 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial 13 burden is met once the claimant establishes that a physical or mental impairment 14 prevents him from engaging in his or her previous occupation. The burden then 15 shifts, at step five, to the Commissioner to show that (1) the claimant can perform 16 other substantial gainful activity, and (2) a “significant number of jobs exist in the 17 national economy” which the claimant can perform. Kail v. Heckler, 722 F.2d 18 1496, 1498 (9th Cir. 1984). 19 ALJ’S FINDINGS 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 6 1 The ALJ found that the Plaintiff met the insured status requirement through 2 March 31, 2013. (Tr. 22.) At step one of the five-step sequential evaluation 3 process, the ALJ found that Plaintiff has not engaged in substantial gainful activity 4 since July 13, 2008, the alleged onset date. (Tr. 22.) At step two, the ALJ found 5 that Plaintiff had the severe impairments of: (1) lumbar degenerative disc disease, 6 (2) hepatitis C, (3) urinary incontinence, (4) major depressive disorder, (5) pain 7 disorder, and (6) rule out cognitive disorder. (Tr. 22-26.) The ALJ found that 8 none of the Plaintiff’s impairments, taken alone or in combination, met or 9 medically equaled any of the impairments listed in Part 404, Subpart P, Appendix 10 1 of 20 C.F.R. (Tr. 26-27.) The ALJ determined that the Plaintiff had the RFC to 11 perform light work subject to various non-exertional limitations. (Tr. 27-30.) At 12 step four, the ALJ determined that the Plaintiff could not perform any relevant past 13 work. (Tr. 30.) At step five, the ALJ, relying on the testimony of a vocational 14 expert, found that the Plaintiff could perform jobs that exist in significant numbers 15 in the national economy. (Tr. 30-32.) Accordingly, the ALJ found that the 16 Plaintiff was not under a disability for purposes of the Act. (Tr. 32.) 17 ISSUES 18 The Plaintiff argues that the ALJ’s decision is not supported by substantial 19 evidence or free of legal error because (1) the ALJ failed to appropriately address 20 the medical evidence, (2) the ALJ failed to fully develop the record, (3) the ALJ ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 7 1 failed to properly consider Mr. Simpson’s subjective complaint testimony, and (4) 2 the Defendant failed to meet its burden to show that jobs that the Plaintiff can 3 perform exist in significant numbers. 4 5 6 DISCUSSION Medical Evidence In evaluating a disability claim, the adjudicator must consider all medical 7 evidence provided. A treating or examining physician’s opinion is given more 8 weight than that of a non-examining physician. Benecke v. Barnhart, 379 F.3d 9 587, 592 (9th Cir. 2004). If the treating physician's opinions are not contradicted, 10 they can be rejected by the decision-maker only with clear and convincing reasons. 11 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). If contradicted, the ALJ may 12 reject the opinion with specific, legitimate reasons that are supported by substantial 13 evidence. See Flaten v. Secretary of Health and Human Serv., 44 F.3d 1453, 1463 14 (9th Cir. 1995). In addition to medical reports in the record, the testimony of a 15 non-examining medical expert selected by the ALJ may be helpful in her 16 adjudication. Andrews, 53 F.3d at 1041 (citing Magallanes v. Bowen, 881 F.2d 17 747, 753 (9th Cir. 1989). Testimony of a medical expert may serve as substantial 18 evidence when supported by other evidence in the record. Id. 19 Historically, the courts have recognized conflicting medical evidence, the 20 absence of regular medical treatment during the alleged period of disability, and ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 8 1 the lack of medical support for doctors’ reports based substantially on a claimant’s 2 subjective complaints of pain as specific, legitimate reasons for disregarding the 3 treating physician’s opinion. Flaten, 44 F.3d at 1463-64; Fair v. Bowen, 885 F.2d 4 597, 604 (9th Cir 1989). The ALJ need not accept a treating source opinion that is 5 “brief, conclusory and inadequately supported by clinical finding.” Lingenfelter v. 6 Astrue, 504 F.3d 1028, 1044-45 (citing Thomas v. Barnhart, 278 F.3d 947, 957 (9th 7 Cir. 2002)). Where an ALJ determines a treating or examining physician’s stated 8 opinion is materially inconsistent with the physician’s own treatment notes, 9 legitimate grounds exist for considering the purpose for which the doctor’s report 10 was obtained and for rejecting the inconsistent, unsupported opinion. Nguyen v. 11 Chater, 100 F.3d 1462, 1464 (9th Cir. 1996.) Rejection of an examining medical 12 source opinion is specific and legitimate where the medical source’s opinion is not 13 supported by his or her own medical records and/or objective data. Tommasetti v. 14 Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). 15 Mr. Simpson asserts that the ALJ erred in failing to explain the reasons why 16 the ALJ rejected the testimony of various medical sources. Specifically, Mr. 17 Simpson asserts that the ALJ failed to address the opinions of various examiners 18 and treatment sources, including Edward Farrar, MD, and Thomas Ovenell, DC. 19 Dr. Farrar examined Mr. Simpson on June 21, 2007, and opined that while 20 Mr. Simpson’s back injuries would not normally be expected to cause the type of ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 9 1 pain claimed by Mr. Simpson, such pain was possible from Mr. Simpson’s injuries. 2 (Tr. 393-94.) Dr. Farrar concluded that, due to Mr. Simpson’s degree of 3 discomfort, it was not realistic to expect Mr. Simpson to be able to work. (Tr. 392- 4 94.) Dr. Farrar recommended proceeding by way injection therapy with a 5 physiatrist. (Tr. 394.) 6 Dr. Ovenell is a chiropractor who treated Mr. Simpson in 2004. (Tr. 504.) 7 Dr. Ovenell concluded that Mr. Simpson’s herniated disc rendered him “unable to 8 work at this point and time” and could require surgery before Mr. Simpson would 9 be able to work. (Tr. 504-13.) 10 The ALJ never directly addressed the opinions of Dr. Farrar or Dr. Ovenell. 11 During step two, ALJ Sherry did obliquely address the Dr. Farrar’s opinion but 12 only to take note of Dr. Farrar’s conclusion that Mr. Simpson’s complaints were 13 unusual given the limited nature of the injury. (Tr. 23.) The ALJ never addressed 14 Dr. Farrar’s opinion as to Mr. Simpson’s ability to work. As to Dr. Ovenell’s 15 opinion, ALJ Sherry noted conflicts between Ovenell’s suggestion that surgery 16 may be needed to relieve back pain and the diagnoses of other physicians that 17 surgery was not necessary. (Tr. 22.) However, the ALJ again did not address Dr. 18 Ovenell’s opinion as to Mr. Simpson’s ability to work. 19 Dr. Farrar is an examining physician. Because Dr. Farrar’s opinion is 20 contradicted by other medical evidence, the ALJ could reject Dr. Farrar’s opinion ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 10 1 by providing specific and legitimate reasons supported by substantial evidence in 2 the record. No reasons were provided in this case. 3 Dr. Ovenell is not an acceptable medical source under the regulations. 20 4 C.F.R. § 404.1513. Instead, he is an “other source” whose opinion may support 5 findings as to the severity of a limitation. SSR 06-03p. Despite the fact that Dr. 6 Ovenell is an “other source,” an ALJ may not simply reject their opinions without 7 comment. Instead, an ALJ must provide reasons that are germane for rejecting 8 each source. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). The ALJ has 9 not provided a germane reason. Accordingly, the ALJ has failed to provide a basis 10 for the rejection of Dr. Ovenell’s opinion. 11 The Defendant argues that the ALJ did not err in failing to address the 12 opinions of Dr. Farrar and Dr. Ovenell, because both opinions were given prior to 13 Mr. Simpson’s July 13, 2008, onset date. Opinions issued prior to the alleged 14 onset date are of “limited relevance.” Carmickle v. Comm’r of Soc. Sec. Admin., 15 533 F.3d 1155, 1166 (9th Cir. 2008). However, an ALJ must consider all relevant 16 evidence in making an RFC determination. Robbins v. Soc. Sec. Admin., 466 F.3d 17 880, 883 (9th Cir. 2006). Accordingly, even though the pre-onset opinions are 18 limited in their relevance, they still must be considered by the ALJ. 19 20 The Defendant argues that, with respect to Dr. Farrar’s opinion, the ALJ did not err in rejecting it without comment because the opinion did not specifically ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 11 1 identify Mr. Simpson’s limitations. However, while an ALJ is not bound by a 2 medical source’s opinion on the ultimate issue of the claimant’s employability, the 3 ALJ must still give reasons for rejecting such an opinion, even where that opinion 4 references only a likelihood that employment is not achievable. See e.g. Hill v. 5 Astrue, 698 F.3d 1153, 1160 (9th Cir. 2012) (holding that it an ALJ erred in failing 6 to address a physician’s statement that the claimant’s “combination of mental and 7 medical problems makes the likelihood of sustained full time competitive 8 employment unlikely.”) Here, Dr. Farrar’s opinion was based on his examination 9 of Mr. Simpson. Accordingly, his conclusion was based on the evidence presented 10 to him of Mr. Simpson’s discomfort due to his back injuries. If the ALJ wishes to 11 reject Dr. Farrar’s conclusion, the ALJ must provide a basis for doing so. As no 12 basis was provided, the ALJ erred in this case. 13 In light of the fact that additional proceedings could cure the ALJ’s failure to 14 address Dr. Farrar’s and Dr. Ovenell’s opinions, the proper remedy in this case is 15 remand. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). 16 Accordingly, IT IS HEREBY ORDERED: 17 1. The Plaintiff’s motion for summary judgment, ECF No. 22, is 18 19 20 GRANTED. 2. The Defendant’s motion for summary judgment, ECF No. 26, is DENIED. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 12 1 3. This case is REMANDED for the ALJ to conduct a new hearing and 2 issue a new opinion in which the ALJ addresses more fully the medical 3 evidence in the record. The ALJ should take the testimony of a 4 vocational expert in response to any new limitations that arise from the 5 medical evidence. The Court wishes to make clear that it express no 6 opinion as to what the ultimate outcome on remand will or should be. 7 The Commissioner is free to give whatever weight to the additional 8 evidence he deems appropriate. 9 4. JUDGMENT shall be entered for the Plaintiff. 10 IT IS SO ORDERED. 11 The District Court Executive is hereby directed to enter this Order, to 12 13 provide copies to counsel, and to close this file. DATED this 4th of December 2013. 14 15 16 s/Fred Van Sickle Fred Van Sickle Senior United States District Judge 17 18 19 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 13

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