Johnson v. Colvin (previously Astrue), No. 2:2012cv03060 - Document 24 (E.D. Wash. 2014)
Court Description: ORDER Granting 18 Plaintiff's Motion for Summary Judgment; denying 20 Defendant's Motion for Summary Judgment. The decision of the Commissioner denying benefits is reversed and the case is remanded to the ALJ for an immediate award of benefits. Signed by Senior Judge Robert H. Whaley. (PL, Case Administrator)
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Johnson v. Colvin (previously Astrue) Doc. 24 1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 8 KELLEY JOHNSON, 9 Plaintiff, v. 10 11 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 12 Defendant. NO. CV-12-3060-RHW ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 13 Before the Court are Plaintiff’s Motion for Summary Judgment, ECF No. 18 14 15 and Defendant’s Motion for Summary Judgment, ECF No. 20. The motions were 16 heard without oral argument. Plaintiff is represented by D. James Tree. Defendant 17 is represented by Assistant United States Attorney Pamela De Rusha and Special 18 Assistant United States Attorney Gerald Hill. 19 I. Jurisdiction 20 On July 21, 2008, Plaintiff Kelley Johnson filed a Title II application for 21 disability insurance benefits (DIB) and a Title XVI for supplemental security 22 income (SSI). Plaintiff alleged she is disabled because of PTSD, depression, and 23 anxiety. (Tr. 157-58.) Her application was denied initially on September 24, 2008, and again 24 25 denied on reconsideration on November 6, 2008. A timely request for a hearing 26 was made. On June 15, 2010, Plaintiff appeared in Yakima, Washington before 27 Administrative Law Judge (ALJ) Marie Palachuk, who appeared by video28 conference from Spokane, Washington. Dr. Margaret Moore, medical expert, and ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 Sharon Welter, vocational expert, also appeared at the hearing. Plaintiff was 2 represented by attorney D. James Tree. At the hearing, Plaintiff amended the onset 3 date to July 1, 2007. 4 The ALJ found that Plaintiff was not disabled since July 1, 2007. Plaintiff 5 timely requested review by the Appeals Council, which was denied on February 6 23, 2012. The Appeals Council’s denial of review makes the ALJ’s decision the 7 final decision of the Commissioner. 42 U.S.C. §405(h). Plaintiff timely filed an 8 appeal with the U.S. District Court for the Eastern District of Washington on April 9 23, 2012. The instant matter is before the district court pursuant to 42 U.S.C. § 10 405(g). 11 II. Sequential Evaluation Process 12 The Social Security Act defines disability as the “inability to engage in any 13 substantial gainful activity by reason of any medically determinable physical or 14 mental impairment which can be expected to result in death or which has lasted or 15 can be expected to last for a continuous period of not less than twelve months.” 16 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant shall be determined to be 17 under a disability only if her impairments are of such severity that the claimant is 18 not only unable to do her previous work, but cannot, considering claimant's age, 19 education and work experiences, engage in any other substantial gainful work 20 which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). 21 The Commissioner has established a five-step sequential evaluation process 22 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a)(4), 23 416.920; Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). 24 Step 1: Is the claimant engaged in substantial gainful activities? 20 C.F.R. 25 §§ 404.1520(b), 416.920(b). Substantial gainful activity is work done for pay and 26 requires compensation above the statutory minimum. 20 C.F.R. §§ 404.1574, 27 416.972; Keyes v. Sullivan, 894 F.2d 1053, 1057 (9th Cir. 1990). If the claimant is 28 engaged in substantial activity, benefits are denied. 20 C.F.R. §§ 404.1571, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 416.920(b). If she is not, the ALJ proceeds to step two. 2 Step 2: Does the claimant have a medically-severe impairment or 3 combination of impairments? 20 C.F.R. §§ 404.1520(c), 416.920(c). If the 4 claimant does not have a severe impairment or combination of impairments, the 5 disability claim is denied. A severe impairment is one that lasted or must be 6 expected to last for at least 12 months and must be proven through objective 7 medical evidence. 20 C.F.R. §§ 404.1508-09, 416.908-09. If the impairment is 8 severe, the evaluation proceeds to the third step. 9 Step 3: Does the claimant’s impairment meet or equal one of the listed 10 impairments acknowledged by the Commissioner to be so severe as to preclude 11 substantial gainful activity? 20 C.F.R. §§ 404.1520(d), 416.920(d); 20 C.F.R. 12 § 404 Subpt. P. App. 1. If the impairment meets or equals one of the listed 13 impairments, the claimant is conclusively presumed to be disabled. Id. If the 14 impairment is not one conclusively presumed to be disabling, the evaluation 15 proceeds to the fourth step. 16 Step 4: Does the impairment prevent the claimant from performing work she 17 has performed in the past? 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant 18 is able to perform her previous work, she is not disabled. Id. If the claimant 19 cannot perform this work, the ALJ proceeds to the fifth and final step. 20 Step 5: Is the claimant able to perform other work in the national economy 21 in view of her age, education, and work experience? 20 C.F.R. §§ 404.1520(f), 22 416.920(f). 23 The initial burden of proof rests upon the claimant to establish a prima facie 24 case of entitlement to disability benefits. Tackett v. Apfel, 108 F.3d 1094, 1098 25 (9th Cir. 1999). This burden is met once a claimant establishes that a physical or 26 mental impairment prevents her from engaging in her previous occupation. Id. At 27 step five, the burden shifts to the Commissioner to show that the claimant can 28 perform other substantial gainful activity. Id. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 III. Standard of Review 2 The Commissioner’s determination will be set aside only when the ALJ’s 3 findings are based on legal error or are not supported by substantial evidence in 4 the record as a whole. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992) 5 (citing 42 .S.C. § 405(g)). Substantial evidence is “more than a mere scintilla,” 6 Richardson v. Perales, 402 U.S. 389, 401 (1971), but “less than a preponderance.” 7 Sorenson v. Weinberger, 514 F.2d 1112, 1119 n. 10 (9th Cir. 1975). Substantial 8 evidence is “such relevant evidence as a reasonable mind might accept as adequate 9 to support a conclusion.” Richardson, 402 U.S. at 401. The Court must uphold the 10 ALJ’s denial of benefits if the evidence is susceptible to more than one rational 11 interpretation, one of which supports the decision of the administrative law judge. 12 Batson v. Comm'r, Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). “If the 13 evidence can support either outcome, the court may not substitute its judgment for 14 that of the ALJ.” Matney, 981 F.2d at 1019. 15 A decision supported by substantial evidence will be set aside if the proper 16 legal standards were not applied in weighing the evidence and making the 17 decision. Brawner v. Secretary of Health & Human Servs., 839 F.2d 432, 433 (9th 18 Cir. 1988). An ALJ is allowed “inconsequential” errors as long as they are 19 immaterial to the ultimate non-disability determination. Stout v. Comm’r, Soc. Sec. 20 Admin., 454 F.3d 1050, 1055 (9th Cir. 2006). 21 IV. Statement of Facts 22 The facts have been presented in the administrative transcript and the ALJ’s 23 decision, and will only be summarized here. 24 At the time of the hearing, Plaintiff was 32 years old. She has two children, 25 although her parents adopted her first son. She lived with the father of her first son 26 for a time period, although during this time, he was physically and emotionally 27 abusive. At one point, he threatened to kill Plaintiff. This caused her to go into 28 hiding, living on the streets. She used various recreational drugs at this time when ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 they were available. In 2007, she became pregnant again after being raped. She 2 stopped using drugs and has been clean since that time. 3 She has attempted to commit suicide three times. She was hospitalized for 4 two of the attempts. Plaintiff has limited work experience, working at a cherry 5 orchard, as a cashier, as a nursery school attendant, and a mold dresser, which was 6 described by the vocational expert as breaking and cleaning the molds and waxing 7 the inside of the molds. (Tr. 65.) 8 Plaintiff was in special education throughout her school years. She left 9 school in 10th grade. She struggled with reading and math. She has not earned her 10 GED. Plaintiff has suffered from depression from an early age and was diagnosed 11 with ADHD in the fourth grade. Her ADHD was successfully treated with 12 medication until she stopped taking the medication because her fellow classmates 13 began teasing her. She testified that she has no hobbies or activities. She described 14 her current state of mind: 15 I don’t really care about nothing. I don’t want to do anything. I’m just really wasting my life, Well, I read books to my son and do stuff that I 16 have to do, you know, to take care of him. But I don’t think if I didn’t have him, I don’t think I’d be like around. 17 (Tr. 60.) 18 Upon further questioning, Plaintiff explained, “I don’t know, I’m just here 19 because I have to be. Because my son didn’t ask to be here and it’s my 20 responsibility to raise him.” (Tr. 60.) 21 V. The ALJ’s findings 22 The ALJ found Plaintiff met the insured status requirements of the Social 23 Security Act through December 31, 2007. (Tr. 23.) 24 At step one, the ALJ found Plaintiff had not engaged in substantial gainful 25 activity since July 1, 2007, the amended alleged onset date. (Tr. 21.) 26 At step two, the ALJ found Plaintiff had the following severe impairments: 27 attentional deficit hyperactivity disorder; affective disorder/depression; personality 28 disorder, not otherwise specified; and polysubstance abuse/dependence in full, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 sustained remission. (Tr. 24.) 2 At step three, the ALJ found Plaintiff did not have an impairment or 3 combination of impairments that meets or medically equals one of the listed 4 impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 22.) The ALJ 5 considered whether Plaintiff met the listing for 12.02, 12.04, 12.08, 12.09. (Tr. 6 25.) The ALJ found that Plaintiff has the residual functional capacity1 to perform 7 8 the full range of work at all exertional levels, but with the following nonexertional 9 limitations: can maintain sufficient attention and concentration to understand, 10 remember and follow simple instructions; and can maintain sufficient attention 11 and concentration to perform routine tasks. She must work in a low stress job (one 12 involving only occasional changes in the work setting). Her interaction with the 13 public is limited to superficial and she should work primarily alone, and with only 14 occasional supervision. (Tr. 26.) 15 At step four, the ALJ found Plaintiff was capable of performing past 16 relevant work as a fruit harvest worker, cashier-checker, mold dresser, and sorter, 17 agriculture produce. (Tr. 31.) 18 VI. Issues for Review 19 20 1 “RFC is what an individual can still do despite his or her functional limitations 21 and restrictions caused by his or her medically determinable physical or mental 22 impairments. It is an administrative assessment of the extent to which an 23 individual’s medically determinable impairment(s), including any related 24 symptoms, such as pain, may cause physical or mental limitations or restrictions 25 that may affect his or her capacity to perform work-related physical and mental 26 activities. . . RFC is the individual’s maximum remaining ability to perform 27 sustained work on a regular and continuing basis: i.e. 8 hours a day, for 5 days a 28 week, or an equivalent work schedule. SSR96-6P. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 Plaintiff presents the following issues with respect to the ALJ’s findings: 2 1. Did the ALJ commit reversible error by finding contrary to her own VE’s 3 testimony that Dr. Moore’s opinions equated to no work? 4 2. Did the ALJ commit reversible error by improperly rejecting Dr. 5 Rodenberger’s and Ms. Meck’s opinion? 6 3. Did the ALJ commit reversible error by improperly rejecting Ms. 7 Rapisarda’s and Ms. Elsner’s opinion? 8 4. Did the ALJ commit reversible error by making a negative credibility 9 finding? 10 VII. Discussion 11 Plaintiff’s first argument pertains to the testimony provided by Dr. Margaret 12 Moore, a medical expert, and the testimony of Sharon Welter, a vocational expert. 13 At the hearing, Dr. Moore reviewed the B criteria. She concluded that her 14 activities of daily living were only mildly limited. (Tr. 46.) She concluded that 15 social functioning was moderately limited, and concentration, persistence and pace 16 were also moderately limited. She then reviewed a mental medical source 17 statement, and identified those items where she believed Plaintiff had a moderate 18 or greater limitation: (1) the ability to carry out detailed instructions; (2) the ability 19 to maintain attention and concentration for extended periods; (3) the ability to 20 work in coordination with or proximity to others without being distracted by them; 21 (4) the ability to interact appropriately with the general public; (5) the ability to 22 accept instructions and respond appropriately to criticism from supervisors; (6) the 23 ability to get along with co-workers or peers without distracting them or exhibiting 24 behavioral extremes; (7) the ability to respond appropriately to changes in the 25 work setting; and (8) the ability to set realistic goals or make plans independently.2 26 27 2 The record is unclear which form Dr. Moore was reviewing, but both parties 28 agree that the numbers identified by Dr. Moore correspond to the above-listed ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 At the hearing, Ms. Welter was questioned by the ALJ: Okay. Ms. Welter, now I’m going to ask you to assume a hypothetical individual of the same age, education and work experience as the claimant. Looking at the regulatory categories we have a younger worker with limited education. This hypothetical individual would have no exertional limits but would have the following mental limitations–attention and concentration to understand, remember and follow simple instructions, that’s based on the medical record and Dr. Moore’s testimony today, problems with detailed instructions. The individual would also be able to perform routine tasks, but would be limited to interactions with the general public to only superficial, that–with Dr. Moore’s–as well. And the individual would need to work primarily alone with only occasional supervision. Based on Dr. Moore’s indication, it would be difficult to accept instruction and getting along with coworkers. Finally, the jobs have to be defined as a low stress job. And by that I define it as only occasional changes in a work setting since the work setting–changes in the setting would be difficult. (Tr. 65.) Ms. Welter, based on the limitations presented by the ALJ concluded that Plaintiff was capable of performing her past work as a cashier/checker, mold dresser, and sorter, agricultural produce. (Tr. 65.) Plaintiff’s counsel then questioned Ms. Welter. In doing so, he defined moderate limitations as a “significant interference with basic work-related activities.” (Tr. 66-67.) He then listed the eight categories identified by Dr. Moore and asked if it was more probable than not that a hypothetical person with these limitations would not be able to sustain employment. Ms. Welter replied, “It would be if moderate is defined as a significant interference, yes.” (Tr. 67.) Based on Ms. Werner’s testimony, if moderate limitations is defined as a significant interference with basic work-related activities, Plaintiff is disabled. However, the Court does not have to address this issue because the Court concludes the ALJ’s credibility determination is not supported by the record. At the hearing, Plaintiff testified that she is an isolated person and she does not like to leave her house. (Tr. 55.) She gets paranoid and only talks to her family 27 28 limitations. See ECF No. 18 at 6; ECF No. 20 at 5-7. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 and one friend. (Tr. 55.) She does not associate with anybody else. (Tr. 55.) She 2 testified that she only leaves her house if her mom or dad will come pick her up, 3 which takes place about once or twice a month. (Tr. 55.) Her sister will pick her up 4 maybe once or twice a month to go grocery shopping. (Tr. 55.) And she goes to 5 Rite Aid once or sometimes twice a month to get her medication. (Tr. 55.) She 6 testified that Rite Aid is about a block away from her house. (Tr. 55.) 7 Plaintiff went on to explain that her inability to be around people is 8 beginning to affect her child. (Tr. 56.) Her child attends speech therapy because he 9 does not speak much because he does not leave the house. (Tr. 56.) She expressed 10 remorse over this, and stated, “if I can, if I would be able to just go out there and 11 be around other people and stuff, that I would do it. But it’s just too hard for me.” 12 (Tr. 56.) She reports that if she goes shopping to Wal-Mart or Safeway, she needs 13 to take an anxiety pill. (Tr. 56.) 14 Ms. Welter was asked by Plaintiff’s counsel if Plaintiff would be able to 15 sustain employment if her testimony given at the hearing was accepted. (Tr. 66.) 16 Ms. Welter replied, “Well, it appears that she does not leave her house unless 17 accompanied to and with someone else. So I would assume that would mean she 18 would miss a great deal of work, if not all work, so would not be able to be 19 retained if that were the case.” (Tr. 66.) 20 In her order, the ALJ found that Plaintiff’s statements concerning the 21 intensity, persistence and limiting effects of her symptoms were not credible. (Tr. 22 27.) The ALJ relied on the following to make her assessment: (1) Plaintiff was not 23 taking medication suggesting compliance problems; (2) Plaintiff failed to show for 24 several counseling appointments suggesting she has contributed, at least in part, to 25 her continuing condition; (3) secondary gain issues may be present because the 26 description of her problems in the treatment notes suggest economic factors, and 27 she also expressed having housing problems; and (4) Plaintiff can perform a full 28 range of daily activities. (Tr. 27-28.) ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 An ALJ’s assessment of a claimant’s credibility is entitled to “great weight.” 2 Anderson v. Sullivan, 914 F.2d 1121, 1124 (9th Cir.1990). When there is no 3 evidence of malingering, the ALJ must give “specific, clear and convincing 4 reasons” for rejecting a claimant’s subjective symptom testimony. Molina v. 5 Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (citation omitted). If the ALJ’s 6 credibility finding is supported by substantial evidence in the record, the 7 reviewing court “may not engage in second-guessing.” Thomas v. Barnhart, 278 8 F.3d 947, 959 (9th Cir. 2002). 9 In recognition of the fact that an individual’s symptoms can sometimes 10 suggest a greater level of severity of impairment than can be shown by the 11 objective medical evidence alone, 20 CFR 404.1529(c) and 416.929(c) describe 12 the kinds of evidence, including the factors below, that the ALJ must consider in 13 addition to the objective medical evidence when assessing the credibility of an 14 individual’s statements: 15 16 17 18 19 20 21 22 23 24 1. The individual’s daily activities; 2. The location, duration, frequency, and intensity of the individual’s pain or other symptoms; 3. Factors that precipitate and aggravate the symptoms; 4. The type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms; 5. Treatment, other than medication, the individual receives or has received for relief of pain or other symptoms; 6. Any measures other than treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and 7. Any other factors concerning the individual’s functional limitations and restrictions due to pain or other symptoms. SSR 96-7P, 1996 WL 374186. Here, the ALJ’s credibility determination is not supported by the record 25 under the clear-and-convincing standard. There is nothing in the record to suggest 26 that her treatment providers believed that she was malingering, or they disbelieved 27 that she had significant trust issues, or that her inability to go outside the house 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 without supervision was not true.3 Instead, the record shows that Plaintiff was 2 receiving extensive counseling–sessions that lasted 90-120 minutes, which Dr. 3 Moore found “astounding.” (Tr. 49.) The ALJ focused on the treatment notes that 4 indicated that Plaintiff’s mood was stable and that she was making good progress, 5 but failed to acknowledge Plaintiff’s sleep problems due to nightmares, her 6 inability to trust individuals, the fact that she is easily overwhelmed, her inability 7 8 9 10 11 12 13 to be around men, and her inability to leave her home without being accompanied by her family members, that are present in these same treatment notes. For instance, in October, 2009, while Ms. Mack indicated that Plaintiff’s mood was stable, at the same time Plaintiff reported that she was doing worse than before and she was having difficulty concentrating, as well as having obsessions and fears. (Tr. 398.) She reported that her irritability and fears are keeping her from socializing or being around friends. She also indicated that her relationship with her sister was deteriorating. (Tr. 398.) This does not reflect a person who is 14 making good progress. Similarly, in November, 2009, although Plaintiff indicated 15 she was doing better, Ms. Mack concluded that Plaintiff endorsed depression, 16 anxiety, irritability, difficulty concentrating, obsessions and phobias, even though 17 she described Plaintiff’s mood as stable. (Tr. 402). At that session, Plaintiff asked 18 to have her medication increased. (Tr. 402). 19 The ALJ suggested that there may be compliance problems since in May, 20 2008, Plaintiff was not taking any medications. The ALJ chose to focus on only 21 one piece of the puzzle, however. In April, 2008, Plaintiff met with Sandra Elsner 22 for a counseling session, and asked for a medication management appointment 23 because she felt her depression was getting worse. Rather than impeding her 24 25 3 On April 29, 2008, Sandra Elsner indicated that Plaintiff reported her moods 26 were low and she did not want to leave the house. Plaintiff was concerned that her 27 depression was getting worse. (Tr. 281). There is nothing in the treatment notes 28 that suggest Ms. Elsner did not believe Plaintiff. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 treatment, as the ALJ suggests, Plaintiff was actively seeking medication to deal 2 with her mental health issues. Additionally, due to ulcerative colitis, there was a 3 period of time where she was unable to take her psych meds because she was 4 vomiting. See Tr. 354; see also Tr. 390 (indicating that she was not taking her 5 medications because she is still having bouts of nausea and vomiting and is unable 6 to keep most of her medications down.). Also, at the hearing, which was 7 8 9 10 11 12 13 conducted in 2010, Plaintiff reported that she was taking Lamotrigin, Seroquel, Welbutrin, Prozosin, and Larazepam. (Tr. 53.) The record shows that since May, 2008, Plaintiff was taking her psych medication, except for when they were making her sick. The ALJ’s conclusion that Plaintiff had compliance problems is not supported by the record. The ALJ also cited the fact that she failed to show for several counseling appointments, citing Exhibit 4F. But, a close look at the record shows that the two incidents of no-show cited by the ALJ occurred in 2005.4 On the other hand, the 14 record indicates numerous monthly sessions taking place between 2007 and 2009. 15 The Court was able to find one no-show in December 12, 2007, in which Plaintiff 16 cancelled because she was not feeling well and because of the weather, but the 17 record also shows that she made up this appointment on December 30, 2007. (Tr. 18 278, 280.) At the hearing, Plaintiff reported that she was seeing Sandra Elsner for 19 mental health counseling and Kathy Mack for medication management, each once 20 a month. (Tr. 54.) The record reflects that she regularly attends monthly 21 appointments. She testified that she has not missed that many, but if she did, it was 22 not intentional because she likes to go as the sessions permit her to get her feelings 23 24 4 On January 26, 2005, a note written by Leticia Chavez stated that Plaintiff did 25 not show for intake appointment. (Tr. 296). However, the record shows that she 26 underwent a 90 minute intake appointment on February 14, 2005. The other 27 notation cited by the ALJ indicated that the case was closed because Plaintiff did 28 not show after the intake. (Tr. 293.) ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 out. (Tr. 58.) The ALJ’s conclusion that Plaintiff was contributing to her 2 continuing condition is not supported by the record. Finally, the ALJ suggested that secondary gain issues may be present 3 4 because according to treatment notes, the description of Plaintiff’s problems 5 included economic factors and she also expressed housing problems. (Tr. 28.) 6 Such descriptions consisted of either check boxes that listed various problems, or a list of various categories for Axis IV. For instance, on a Central WA Comp 7 Mental Health Treatment Plain, Axis IV categories listed: 1. Problems with 8 primary support group; 2. Other psycho-social and environmental problems; 3. 9 Problems related to social environment; 4. Economic problems; and 5. Educational 10 problems. (Tr. 369.)5 Without more description of the economic problems, it was 11 unreasonable for the ALJ to assume these notations suggested secondary gain. 12 Also, the housing problem referred to by the ALJ was not due to economic 13 concerns. Rather, at a treatment session, Plaintiff expressed concerns because she 14 was suspicious of a neighbor’s possible drug activity, as there was constant traffic 15 in and out. (Tr. 388.) Ms. Elsner helped Plaintiff make a report to CPS during the 16 session because Plaintiff was concerned about a young child living in that 17 apartment. (Tr. 388.) As a result of Plaintiff’s discomfort, she had been living with 18 her sister. (Tr. 388.) This “housing problem” does not support the ALJ’s 19 conclusion that Plaintiff is not credible because of secondary gain issues. Here, the ALJ’s adverse credibility decision was not harmless. See Batson 20 21 v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1195–97 (9th Cir.2004) (applying 22 harmless error standard where one of the ALJ’s several reasons supporting an 23 adverse credibility finding was held invalid). As set forth above, there is no basis 24 in the record to discredit Plaintiff’s testimony that she is socially isolated and does 25 26 5 See also Tr. 372 (11/24/2008 Central WA Comprehensive Mental Health- 27 listing of the same Axis 4 DSM descriptions); Tr. 381 (2/17/2009, same); Tr. 386 28 (3/30/2009, same); Tr. 391 (5/14/2009, same). ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13 1 not leave the house, except if she is accompanied by her family. Based on Ms. 2 Werner’s testimony, it is clear that Plaintiff is not employable, and therefore, the 3 ALJ committed clear error in concluding she is not disabled. Remand for further administrative proceedings is appropriate if 4 5 enhancement of the record would be useful. See Harman v. Apfel, 211 F.3d 1172, th 6 1178 (9 Cir. 2000). Conversely, where the record has been developed fully and 7 8 9 10 11 12 13 further administrative proceedings would serve no useful purpose, the district court should remand for an immediate award of benefits. Benecke, 379 F.3d at 587. As the Benecke court instructed: the district court should credit evidence that was rejected during the administrative process and remand for an immediate award of benefits if (1) the ALJ failed to provide legally sufficient reasons for rejecting the evidence; (2) there are no outstanding issues that must be resolved before a determination of disability can be made; and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited. 14 Id. 15 Because Ms. Werner testified that if Plaintiff’s testimony was to be 16 believed, she would not be employable, and because the ALJ erred in discrediting 17 Plaintiff’s testimony, it is clear from the record that the ALJ would be required to 18 find Plaintiff disabled if her testimony was properly credited. As such, remand for 19 an immediate award of benefits is appropriate. 20 Accordingly, IT IS HEREBY ORDERED: 21 1. Plaintiff’s Motion for Summary Judgment, ECF No. 18, is GRANTED. 22 2. Defendant’s Motion for Summary Judgment, ECF No. 20, is DENIED. 23 3. The decision of the Commissioner denying benefits is reversed and the 24 case is remanded to the ALJ for an immediate award of benefits. 25 /// 26 27 28 /// /// /// ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 14 1 4. The District Court Executive is directed to enter judgment in favor of 2 Plaintiff and against Defendant. 3 IT IS SO ORDERED. The District Court Executive is hereby directed to 4 file this Order and provide copies to counsel. DATED this 28th day of January, 2014. 5 6 s/Robert H. Whaley 7 8 ROBERT H. WHALEY United States District Judge 9 10 Q:\RHW\aCIVIL\2012\Johnson (SS)\sj.wpd 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 15
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