Evans v. Colvin (previously Astrue), No. 2:2012cv05061 - Document 24 (E.D. Wash. 2014)

Court Description: ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND ORDER OF REMAND - granting 16 Motion for Summary Judgment; and denying 19 Motion for Summary Judgment. Signed by Senior Judge Robert H. Whaley. (CC, Case Administrator)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 9 10 AARON EVANS, 11 Plaintiff, 12 v. 13 14 15 CAROLYN W. COLVIN, Commissioner of Social Security Administration, No. 2:12-CV-05061-RHW ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND ORDER OF REMAND Defendant. 16 17 Before the Court are the parties’ cross-motions for summary judgment, ECF 18 Nos. 16, 19. D. James Tree represents Plaintiff Catherine M. Williams. Assistant 19 United States Attorney Pamela J. DeRusha and Special Assistant United States 20 Attorney Daphne Banay represent the Defendant Commissioner of Social Security 21 (the “Commissioner”). Plaintiff brings this action seeking judicial review under 42 22 U.S.C. § 405(g) of the Commissioner’s final decision, which denied his 23 applications for disability insurance benefits (“DIB”), a period of disability, and 24 supplemental security income (“SSI”) under Titles II and XVI of the Social 25 Security Act (the “Act”). After reviewing the administrative record and briefs filed 26 by the parties, the Court is now fully informed. For the reasons set forth below, the 27 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND ORDER OF REMAND ~ 1 q:\rhw\acivil\social security cases\2012 social security cases\evans (ss)\evans (ss) order (final).docx 1 Court grants Plaintiff’s Motion for Summary judgment, and directs entry of 2 judgment in favor of Plaintiff. 3 I. Jurisdiction 4 Plaintiff filed an application for DIB and period of disability on August 27, 5 2008 and for SSI on September 2, 2008, alleging disability beginning on April 30, 6 2007. Tr. 19. After benefits were denied initially on April 1, 2009, and upon 7 reconsideration on September 25, 2009, Plaintiff requested a hearing before an 8 administrative law judge (hereafter “ALJ”). Tr. 19. Plaintiff appeared with counsel 9 via video conference from Kennewick, Washington, and testified at a hearing held 10 November 18, 2010 with the ALJ in Spokane, Washington. Tr. 16-37. ALJ, Marie 11 Palachuk, presided over the hearing. Tr. 16. In addition, impartial medical experts, 12 Daniel Wiseman, M.D., and R. Thomas McKnight, Ph.D., testified along with 13 impartial vocational expert, K. Diane Kramer. Tr. 19. The ALJ issued a decision 14 denying benefits on December 3, 2010. Tr. 19-37. Thereafter, the Appeals Council 15 denied review on March 10, 2012, which made the ALJ’s decision the 16 Commissioner’s final decision and subject to judicial review. Tr. 1-5. Thus, 17 Plaintiff’s claims are properly before this Court pursuant to 42 U.S.C. § 405(g). 18 19 II. Sequential Evaluation Process The Social Security Act defines disability as the “inability to engage in any 20 substantial gainful activity by reason of any medically determinable physical or 21 mental impairment which can be expected to result in death or which has lasted or 22 can be expected to last for a continuous period of not less than twelve months.” 42 23 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant shall be determined to be 24 under a disability only if his impairments are of such severity that the claimant is 25 not only unable to do his previous work, but cannot, considering claimant's age, 26 education and work experiences, engage in any other substantial gainful work 27 which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND ORDER OF REMAND ~ 2 q:\rhw\acivil\social security cases\2012 social security cases\evans (ss)\evans (ss) order (final).docx 1 The Commissioner established a five-step sequential evaluation process for 2 determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a)(4), 416.920; 3 Lounsburry v. Barnhart, 468 F.3d 1111, 114 (9th Cir. 2006). 4 Step 1: Is the claimant engaged in substantial gainful activities? 20 C.F.R. 5 §§ 404.1520(b), 416.920(b). Substantial gainful activity is work done for pay and 6 requires compensation above the statutory minimum. 20 C.F.R. §§ 404.1574, 7 416.972; Keyes v. Sullivan, 894 F.2d 1053, 1057 (9th Cir. 1990). If the claimant is 8 engaged in substantial activity, benefits are denied. 20 C.F.R. §§ 404.1571, 9 416.920(b). If he is not, the ALJ proceeds to step two. 10 Step 2: Does the claimant have a medically-severe impairment or 11 combination of impairments? 20 C.F.R. §§ 404.1520(c), 416.920(c). If the 12 claimant does not have a severe impairment or combination of impairments, the 13 disability claim is denied. A severe impairment is one that lasted or must be 14 expected to last for at least 12 months and must be proven through objective 15 medical evidence. 20 C.F.R. §§ 404.1508-09, 416.908-09. If the impairment is 16 severe, the evaluation proceeds to the third step. 17 Step 3: Does the claimant's impairment meet or equal one of the listed 18 impairments acknowledged by the Commissioner to be so severe as to preclude 19 substantial gainful activity? 20 C.F.R. §§ 404.1520(d), 416.920(d); 20 C.F.R. 20 § 404 Subpt. P. App. 1 (“the Listings”). If the impairment meets or equals one of 21 the listed impairments, the claimant is conclusively presumed to be disabled. Id. If 22 the impairment is not one conclusively presumed to be disabling, the evaluation 23 proceeds to the fourth step. 24 Step 4: Does the impairment prevent the claimant from performing work she 25 has performed in the past? 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant is 26 able to perform his previous work, she is not disabled. Id. If the claimant cannot 27 perform this work, the ALJ proceeds to the fifth and final step. 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND ORDER OF REMAND ~ 3 q:\rhw\acivil\social security cases\2012 social security cases\evans (ss)\evans (ss) order (final).docx 1 Step 5: Is the claimant able to perform other work in the national economy 2 in view of his age, education, and work experience? 20 C.F.R. §§ 404.1520(f), 3 416.920(f). 4 The claimant bears the burden of proof at steps one through four as detailed 5 above. Molina v. Astrue, 674 F.3d at 1104, 1111 (9th Cir. 2012); Lockwood v. 6 Comm'r of Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010). If the analysis 7 proceeds to step five, the burden shifts to the Commissioner to establish that (1) the 8 claimant is capable of performing other work; and (2) such work “exists in 9 significant numbers in the national economy.” 20 C.F.R. §§ 404.1560(c); 10 11 416.960(c)(2); Beltran v. Astrue, 676 F.3d 1203, 1206 (9th Cir. 2012). Additionally, Plaintiff has the burden of showing that drug and alcohol 12 addiction (“DAA”) is not a contributing factor material to disability. Ball v. 13 Massanari, 254 F.3d 817, 823 (9th Cir.2001). The Social Security Act bars 14 payment of benefits when drug addiction and/or alcoholism is a contributing factor 15 material to a disability claim. 42 U.S.C. §§ 423(d)(2)(C) and 1382(a)(3)(J); 16 Bustamante v. Massanari, 262 F.3d 949 (9th Cir. 2001); Sousa v. Callahan, 143 17 F.3d 1240, 1245 (9th Cir.1998). If there is evidence of DAA and the individual 18 succeeds in proving disability, the Commissioner must determine whether DAA is 19 material to the determination of disability. 20 C.F.R. §§ 404.1535 and 416.935. If 20 an ALJ finds that the claimant is not disabled, then the claimant is not entitled to 21 benefits and there is no need to proceed with the analysis to determine whether 22 substance abuse is a contributing factor material to disability. However, if the ALJ 23 finds that the claimant is disabled, then the ALJ must proceed to determine if the 24 claimant would be disabled if he or she stopped using alcohol or drugs. 25 26 27 28 III. Standard of Review A district court's review of a final decision of the Commissioner of Social Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND ORDER OF REMAND ~ 4 q:\rhw\acivil\social security cases\2012 social security cases\evans (ss)\evans (ss) order (final).docx 1 limited, and the Commissioner's decision will be disturbed “only if it is not 2 supported by substantial evidence or is based on legal error.” Hill v. Astrue, 698 3 F.3d 1144, 1158-59 (9th Cir. 2012) (citing § 405(g)). Substantial evidence is “more 4 than a mere scintilla but less than a preponderance; it is such relevant evidence as a 5 reasonable mind might accept as adequate to support a conclusion.” Sandgathe v. 6 Chater, 108 F.3d 978, 980 (9th Cir.1997) (citation omitted). In determining 7 whether this standard has been satisfied, “a reviewing court must consider the 8 entire record as a whole and may not affirm simply by isolating a ‘specific 9 quantum of supporting evidence.’” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 10 11 (9th Cir. 2006) (citation omitted). In reviewing a denial of benefits, a district court may not substitute its 12 judgment for that of the ALJ. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 13 1992). If the evidence in the record “is susceptible to more than one rational 14 interpretation, [the court] must uphold the ALJ's findings if they are supported by 15 inferences reasonably drawn from the record.” Molina, 674 F.3d at 1111. Further, a 16 district court “may not reverse an ALJ's decision on account of an error that is 17 harmless.” Id. An error is harmless “where it is inconsequential to the [ALJ's] 18 ultimate nondisability determination.” Id. at 1115 (internal citation omitted). The 19 party appealing the ALJ's decision generally bears the burden of establishing that it 20 was harmed. Shinseki v. Sanders, 556 U.S. 396, 409–10 (2009). 21 22 IV. Statement of Facts The facts of the case are set forth in detail in the transcript of proceedings, 23 and only briefly summarized here. Plaintiff was born on March 22, 1972, and was 24 35 years-old as of his alleged onset date of disability. Tr. 373. At the hearing, 25 Plaintiff testified he was living with his wife and her two children. Tr. 91. Plaintiff 26 stopped attending school in the 9th grade, but did later obtain a GED. Tr. 83; 88. 27 Plaintiff testified that he was physically and sexually abused at age five, and also 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND ORDER OF REMAND ~ 5 q:\rhw\acivil\social security cases\2012 social security cases\evans (ss)\evans (ss) order (final).docx 1 witnessed domestic violence involving his mother (who also suffered from 2 substance abuse issues). Tr. 83-84. Plaintiff indicated that on one occasion he saw 3 his mother shoot her then boyfriend, in Plaintiff’s presence, at approximately age 4 five. Id. 5 Plaintiff alleges he is unable to work due to mental impairments, specifically 6 paranoia, not wanting to leave his bedroom, and feeling worthless. Tr. 86-88. 7 Plaintiff reports abusing alcohol beginning at the age of 12 and having issues with 8 drugs up until about two years before the hearing date. Tr. 84; 333. 9 Plaintiff’s past relevant work includes: kitchen helper, material handler, 10 paper inserter, and general laborer. Tr. 94. Most recently, Plaintiff worked at 11 Shari’s Restaurant as a dishwasher from June 2006 – April 2007. Tr. 94; 246. 12 Plaintiff ceased working after about 6-8 months on the job, either as a result of a 13 failed drug test or a disagreement with his then supervisor. Tr. 70-71; 89. 14 15 V. The ALJ’s Findings The ALJ determined that Plaintiff was not disabled under sections 216(i), 16 223(d), and 1614(a)(3)(A) of the Act, and denied his application for DIB and SSI, 17 protectively filed on August 27, 2008 and September 2, 2008. See ALJ’s Decision, 18 December 3, 2010. Tr. 16-29. 19 At step one, the ALJ found that the Plaintiff had not engaged in substantial 20 gainful activity since April 30, 2007, his alleged onset date. Tr. 22 (citing 20 21 C.F.R. §§ 404.1520(b), 404.1751 et seq., 416.920(b) and 416.971 et seq.). 22 At step two, the ALJ found Plaintiff had the following severe impairments: 23 poly-substance dependence, mood disorder not otherwise specified most likely 24 secondary to alcohol and drug use, and anxiety disorder not otherwise specified 25 secondary to methamphetamine use. Tr. 22 (citing 20 C.F.R. §§ 404.1520(c), and 26 416.920(c)). 27 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND ORDER OF REMAND ~ 6 q:\rhw\acivil\social security cases\2012 social security cases\evans (ss)\evans (ss) order (final).docx 1 At step three, the ALJ found that Plaintiff’s impairments, including the 2 substance abuse disorders, meet sections 12.04 (for affective disorders), 12.06 (for 3 anxiety related disorders), and 12.09 (for substance addiction disorders) of the 4 Listing of Impairments in 20 C.F.R. § 404, Subpt. P, App. 1 (20 C.F.R. §§ 5 404.1520(d) and 416.920 (d) (the “Listings’). Tr. 27. Accordingly, the Plaintiff was 6 disabled. 7 8 9 The ALJ then reevaluated the sequential evaluation process parsing out the effects of Plaintiff’s substance use. At the step two reevaluation, the ALJ found that if the plaintiff stopped the 10 substance abuse, the remaining limitations would cause more than a minimal 11 impact on his ability to perform basic work activities; therefore, the Plaintiff would 12 continue to have a severe impairment or combination of impairments. Tr. 28. 13 At the step three reevaluation, the ALJ found that if Plaintiff stopped the 14 substance use, he would not have an impairment or combination of impairments 15 that meets or medically equals any of the impairments listed in the Listings (20 16 C.F.R. §§ 404.1520(d) and 416.920(d)). 17 18 19 20 21 22 23 24 25 26 The ALJ then assessed Plaintiff’s residual functional capacity, finding that: If the claimant stopped the substance use, the claimant would have the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations: He is able to do simple, routine, repetitive tasks. He is able to interact with the public on a minimal basis, i.e., less than occasional. Tr. 29 (citing 20 C.F.R. §§ 404.1520(e), 404.1545, 416.920(e), 416.945). At the step four reevaluation, the ALJ found that Plaintiff was not disabled because if he stopped the substance abuse he would be able to perform past relevant work as dishwasher/kitchen helper, material handler, paper 27 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND ORDER OF REMAND ~ 7 q:\rhw\acivil\social security cases\2012 social security cases\evans (ss)\evans (ss) order (final).docx 1 inserter/duplicating machine operator, and general laborer. Tr. 32 (citing 20 C.F.R. 2 §§ 404.1520(a)(4)(iv), 404.1520(f), 416.920(a)(4)(iv), 416.920(f)). 3 As a result of these findings, the ALJ concluded that Plaintiff would not be 4 disabled if he stopped substance use; thus, the Plaintiff’s substance abuse disorder 5 is a contributing factor material to the determination of disability. Tr. 33 (citing 20 6 C.F.R. §§ 404.1535 and 416.935). Accordingly, the ALJ determined that Plaintiff 7 has not been disabled under the meaning of the Act from April 30, 2007, his 8 alleged onset date, through December 3, 2010, the date of the ALJ’s decision. Tr. 9 33. 10 VI. 11 Issues for Review Plaintiff argues that he is more limited from a psychological standpoint than 12 was determined by the ALJ. ECF No. 16 at 11-19. Specifically, Plaintiff alleges the 13 ALJ committed reversible error by (1) finding that there was no clean (sober) 14 period of time to assess Plaintiff’s impairments; (2) rejecting the opinion of Dr. 15 Harmon; (3) rejecting the opinion of Ms. Smith; (4) conducting an improper DAA 16 analysis; and (5) failing to find post-traumatic stress disorder (“PTSD”) to be a step 17 two severe impairment. ECF No. 16 at 10. Defendant contends the ALJ (1) 18 properly found a clean (sober) period of time to assess Plaintiff’s impairments; (2) 19 properly rejected Dr. Harmon’s opinion; (4) conducted a proper DAA analysis; and 20 (5) did not error by not finding PTSD to be a step two impairment. ECF No. 22 at 21 8-28. Defendant concedes that the ALJ erred on one reason for (4) rejecting Ms. 22 Smith’s opinion, but argues that this error was harmless and the other reasons for 23 rejecting the opinion were germane. ECF No. 22 at 13-15. 24 /// 25 /// 26 /// 27 /// 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND ORDER OF REMAND ~ 8 q:\rhw\acivil\social security cases\2012 social security cases\evans (ss)\evans (ss) order (final).docx 1 2 VII. Discussion A. The ALJ Properly Evaluated Plaintiff’s Mental Impairments 3 1. 4 The ALJ is responsible for determining credibility and resolving ambiguities Legal Standard – Medical Opinion Evidence 5 and conflicts in the medical evidence. See Reddick v. Chater, 157 F.3d 715, 722 6 (9th Cir. 1998). Where the medical evidence in the record is not conclusive, 7 “questions of credibility and resolution of conflicts” are solely the functions of the 8 ALJ. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). In such cases, “the 9 ALJ's conclusion must be upheld.” Morgan v. Comm’r of the Social Sec. Admin., 10 169 F.3d 595, 601 (9th Cir. 1999). Determining whether inconsistencies in the 11 medical evidence “are material (or are in fact inconsistencies at all) and whether 12 certain factors are relevant to discount” the opinions of medical experts “falls 13 within this responsibility.” Id. at 603. 14 In resolving questions of credibility and conflicts in the evidence, an ALJ's 15 findings “must be supported by specific, cogent reasons.” Reddick, 157 F.3d at 16 725. The ALJ can do this “by setting out a detailed and thorough summary of the 17 facts and conflicting clinical evidence, stating his interpretation thereof, and 18 making findings.” Id. The ALJ also may draw inferences “logically flowing from 19 the evidence.” Sample, 694 F.2d at 642. Further, the Court itself may draw 20 “specific and legitimate inferences from the ALJ's opinion.” Magallanes v. Bowen, 21 881 F.2d 747, 755, (9th Cir. 1989). 22 In evaluating medical or psychological evidence, a treating or examining 23 physician's opinion is entitled to more weight than that of a non-examining 24 physician. Benecke v. Barnhart, 379 F.3d 587, 592 (9th Cir. 2004); Lester v. 25 Chater, 81 F.3d 821, 830 (9th Cir. 1995). If the treating or examining physician's 26 opinions are not contradicted, they can be rejected only with “clear” and 27 “convincing” reasons. Lester, 81 F.3d at 830. If contradicted, the opinion can only 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND ORDER OF REMAND ~ 9 q:\rhw\acivil\social security cases\2012 social security cases\evans (ss)\evans (ss) order (final).docx 1 be rejected for “specific” and “legitimate” reasons that are supported by substantial 2 evidence in the record. Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995). 3 An ALJ can satisfy this burden by setting out a detailed and thorough summary of 4 the facts and conflicting clinical evidence, stating her interpretation thereof, and 5 making findings. Tommasetti v. Astrue, 533 F.2d 1035, 1041 (9th Cir. 2008). 6 2. 7 The ALJ rejected Dr. Harmon’s opinion stating that, “[D]r. McKnight [the 8 non-examining psychological medical expert at the November 18, 2010 hearing] 9 testified this was not an evaluation, noting that there was a claim of 6 months Dr. Harmon’s Opinion 10 abstinence in that document, which is not supported in the record as a whole.” Tr. 11 27; Tr. 77. Plaintiff contends that there was a six month period of abstinence and 12 that rejecting Dr. Harmon’s opinion on that ground constitutes reversible error. 13 ECF No. 16 at 11. 14 Here, Dr. Harmon’s opinion is contradicted by Dr. McKnight, thus in order 15 to properly reject Dr. Harmon’s opinion, the ALJ must provide specific and 16 legitimate reasons for doing so. See Tr. 27; Andrews, 53 F.3d at 1043. In rejecting 17 Dr. Harmon’s opinion, the ALJ gave significant weight to Dr. McKnight’s 18 testimony which stated, “[Dr. Harmon’s opinion] was not an evaluation, … there 19 was a claim of six months abstinence in that document [Ex. 2F/1], which is not 20 supported in the record as a whole.” Tr. 27. As Plaintiff correctly points out, the 21 record does support a previous period of six months abstinence, though the exact 22 time frame is unclear, insofar as it relates to the date of Dr. Harmon’s opinion. 23 It appears the only times of abstinence in the record involve the claimant’s incarcerations in August 2007 to June 2008 (Exhibit 1F) and October 2009 to April 2010 (Exhibit 15F), and while involved in the 90 day inpatient treatment from December 2008 to March 2009 (Exhibits 5F and 10F). 24 25 26 27 28 Tr. 31. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND ORDER OF REMAND ~ 10 q:\rhw\acivil\social security cases\2012 social security cases\evans (ss)\evans (ss) order (final).docx 1 Accordingly, the record does indicate whether there were periods of 2 abstinence lasting at least 6 months. The problem, as both parties mention, is that 3 Dr. Harmon’s opinion (and reference to a period of six months of abstinence from 4 drugs) occurred on August 20, 2008, some two months after the documented 5 period of abstinence. Thus, there is no evidence that Plaintiff relapsed in the two 6 months in between, but also no evidence that Plaintiff did not relapse within the 7 applicable time frame. As this case must ultimately be remanded, the Court finds 8 that the record on the six month period of abstinence needs to be more fully 9 developed upon further review. See DeLorme v. Sullivan, 924 F.2d 841, 849 (9th 10 Cir. 1991) (“The ALJ has a duty to develop the record . . . even when the claimant 11 is represented by counsel.”). 12 3. 13 An ALJ may reject the opinion from “other sources” who are not considered 14 “an acceptable medical source” by providing germane reasons for doing so. Turner 15 v. Comm’r of the Soc. Sec. Admin., 613 F. 3d 1217, 1223-1224 (9th Cir. 2010). 16 Acceptable medical sources are found in 20 C.F.R. §§ 404.1513(a)(1)-(5), 17 416.913(a)(1)-(5) and other sources who are not acceptable medical sources are 18 found in 20 C.F.R. §§ 404.1513(d)(1)-(4), 416.913(d)(1)-(4). Legal Standard—“Other Source” Evidence 19 4. 20 Plaintiff contends that the ALJ improperly rejected Ms. Smith’s opinion for Ms. Smith’s Opinion Was Improperly Rejected 21 three reasons—(1) by finding that Ms. Smith noted Plaintiff’s problems were 22 substance induced; (2) by stating that she was a “non-acceptable source”; and (3) 23 by finding Ms. Smith’s opinion to be contradictory to Dr. Everhart’s on the issue 24 of ability to perform simple instructions. ECF No. 16 at 12-13. Defendant asserts 25 that the ALJ provided germane reasons to reject Ms. Smith’s opinion while 26 conceding that one reason—the finding that Ms. Smith noted Plaintiff’s problems 27 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND ORDER OF REMAND ~ 11 q:\rhw\acivil\social security cases\2012 social security cases\evans (ss)\evans (ss) order (final).docx 1 were substance induced—was in error. ECF No. 19 at 15. Defendant further asserts 2 that his error was harmless. Id. 3 Ms. Smith, Master of Education, M.E.d., Licensed Mental Health Counselor 4 (L.H.M.C.), completed a Washington State Department of Social and Health 5 Services psychological/psychiatric evaluation form and a Mental Health 6 Evaluation/Jail Services report on August 12, 2008. Tr. 319-322; 323-324. After 7 testing, Ms. Smith assessed diagnoses of chronic PTSD, and Amphetamine 8 Dependence in Early Full Remission in a Controlled Environment, along with 9 associated marked and severe functional medical disorders and marked impairment 10 of his ability to respond appropriately and tolerate the pressures and expectations 11 of a normal work setting. Tr. 320-324. She further opined that Plaintiff had a 12 global assessment of functioning (“GAF”) score of 37. Tr. 321. 13 Here, Ms. Smith is an “other source” for the purposes of the Social Security 14 Regulations. 20 C.F.R. §§ 404.1513(a)(1)-(5), 416.913(a)(1)-(5); 20 C.F.R. §§ 15 404.1513(d)(1)-(4), 416.913(d)(1)-(4). Defendant concedes that the ALJ erred in 16 rejecting Ms. Smith’s opinion on the basis that she noted his problems were 17 substance induced because this was not a part of her report. Tr. 32; 320. The other 18 two reasons Ms. Smith’s opinion was rejected found that (1) she is a non- 19 acceptable medical source and, (2) Dr. Everhart opined that Plaintiff was capable 20 of performing simple instructions. Rejecting Ms. Smith’s opinion solely because 21 she was a non-acceptable medical source is not a germane reason. See Bailey v. 22 Astrue, 725 F. Supp. 2d 1244, 1255 (E.D. Wash. 2010). Rejecting Ms. Smith’s 23 opinion because a clinical psychologist opined Plaintiff could perform simple 24 instructions would be a germane reason to reject the opinion; however, Ms. Smith 25 did not opine that Plaintiff could not perform simple instructions. Tr. 321. In fact, 26 Ms. Smith opined that Plaintiff had moderate limitations in his ability to perform 27 simple instructions. Tr. 321. Defendant urges the Court to parse the intention of the 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND ORDER OF REMAND ~ 12 q:\rhw\acivil\social security cases\2012 social security cases\evans (ss)\evans (ss) order (final).docx 1 ALJ regarding the true point she was trying to make in relation to Plaintiff’s ability 2 to follow simple instructions. However, this Court declines to do so. It is improper 3 because “[a]ccording to the Ninth Circuit, “[l]ong standing principles of 4 administrative law require us to review the ALJ’s decision based on the reasoning 5 and actual findings offered by the ALJ—not post hoc rationalizations that attempt 6 to intuit what the adjudicator may have been thinking.” Bray v. Comm’r of SSA, 7 554 F.3d 1219, 1226-27 (9th Cir. 2009) (citing SEC v. Chenery Corp., 332 U.S. 8 194, 196 (1947)). 9 With Defendant conceding one ground for rejecting Ms. Smith’s opinion 10 was improper, another reason not being legally germane standing alone, and the 11 final reason requiring the Court to intuit the ALJ’s true intentions, the Court finds 12 that the ALJ did not properly consider the opinion of Ms. Smith because the ALJ 13 did not provide germane reasons to reject it. 14 5. 15 An error may be considered harmless where it “occurred during an Rejecting Ms. Smith’s Opinion Was Not Harmless Error 16 unnecessary exercise or procedure;” is non-prejudicial to the Plaintiff; is 17 considered irrelevant to the determination of non-disability; or if the reviewing 18 court can “confidently conclude” that no reasonable ALJ could have reached a 19 different disability determination if erroneously disregarded testimony was 20 credited. Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1056 (9th Cir. 2006). 21 This error was prejudicial to Plaintiff and therefore not harmless. The ALJ’s 22 first stated reason for rejecting Ms. Smith’s opinion is that she noted Plaintiff’s 23 problems were substance abuse related, when she, in fact, did not note that. See Tr. 24 at 321. It is impossible to know how much this incorrect finding played into her 25 consideration of Ms. Smith’s opinion, which could have, in turn, had an impact on 26 the ultimate finding of not disabled. Further, when the ALJ states that Dr. Everhart 27 opined that Plaintiff was capable of performing simple instructions, this is not 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND ORDER OF REMAND ~ 13 q:\rhw\acivil\social security cases\2012 social security cases\evans (ss)\evans (ss) order (final).docx 1 directly contradictory of Ms. Smith’s opinion. This is also prejudicial to Plaintiff 2 because the ALJ must articulate germane reasons to reject the opinion of Ms. 3 Smith. See Jager v. Barnhart, 192 Fed. Appx. 589, 591 (9th Cir. 2006) (remanding 4 for further administrative proceedings at least in part because the ALJ erred in 5 giving no weight to an “other source,” a mental health therapist). 6 B. The ALJ’s DAA Analysis 7 If the ALJ develops the record further on Dr. Harmon’s opinion and/or 8 decides to credit Ms. Smith’s opinion, she must conduct a new DAA analysis. 9 C. Was PTSD a Step Two Impairment? 10 Plaintiff’s argument surrounding PTSD as a Step Two Impairment also 11 implicates the opinions of Dr. Harmon and Dr. McKnight. Accordingly, after 12 reconsidering their opinions, the ALJ must conduct this analysis anew if the afore- 13 mentioned opinions are afforded more weight on remand. 14 VIII. Conclusion 15 Based on the foregoing, the Court finds the Commissioner’s decision is not 16 free of legal error or supported by substantial evidence. Therefore, the case is 17 reversed and remanded to the Commissioner for further proceedings not 18 inconsistent with the Court’s instructions noted above. 19 Accordingly, IT IS HEREBY ORDERED: 20 1. Plaintiff’s Motion for Summary Judgment, ECF No. 16, is GRANTED. 21 2. Defendant’s Motion for Summary Judgment, ECF No. 19, is DENIED. 22 3. The Commissioner’s decision denying Plaintiff benefits is REVERSED, 23 and this case is REMANDED for further proceedings consistent with this Order. 4. The District Court Executive is directed to enter judgment in favor of 24 25 Plaintiff and against Defendant. 26 /// 27 /// 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND ORDER OF REMAND ~ 14 q:\rhw\acivil\social security cases\2012 social security cases\evans (ss)\evans (ss) order (final).docx 1 5. An application for attorney’s fees may be filed by separate motion. 2 IT IS SO ORDERED. The District Court Executive is directed to enter this 3 Order, forward copies to counsel and close the file. 4 DATED this 18th day of August, 2014. 5 6 7 s/Robert H. Whaley ROBERT H. WHALEY Senior United States District Judge 8 9 10 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 AND ORDER OF REMAND ~ 15 q:\rhw\acivil\social security cases\2012 social security cases\evans (ss)\evans (ss) order (final).docx

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