Herbst v. Colvin (previously Astrue), No. 2:2012cv05085 - Document 25 (E.D. Wash. 2014)
Court Description: ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; granting plaintiff's 16 Motion for Summary Judgment; denying defendant's 22 Motion for Summary Judgment; remanding case back to ALJ; judgment entered in favor of plaintiff; DCE directed to close file. Signed by Senior Judge Wm. Fremming Nielsen. (LE, Case Administrator)
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Herbst v. Colvin (previously Astrue) Doc. 25 1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON 6 MICHAEL RAY HERBST, Plaintiff, 7 8 No. -vs- 9 CAROLYN W. COLVIN, Commissioner of Social Security, 1 10 Defendant. 11 2:CV-12-5085-WFN ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT 12 Before the Court are cross-Motions for Summary Judgment (ECF Nos. 16 and 22). 13 Attorney Thomas Bothwell represents Plaintiff. Special Assistant United States Attorney 14 Gerald J. Hill represents Defendant. The Court has reviewed the administrative record and 15 briefs filed by the parties and is fully informed. JURISDICTION 16 17 Plaintiff protectively applied for disability insurance and supplemental security 18 income benefits on October 22, 2008, alleging disability beginning on December 1, 2004, 19 due to mental and physical impairments. Plaintiff later amended his alleged onset date to 20 October 22, 2008 and withdrew his Title II claim. The application was denied initially and 21 on reconsideration. 22 23 24 1 Carolyn W. Colvin became the Acting Commissioner of Social Security on 25 February 14, 2013. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, 26 Carolyn W. Colvin is substituted for Michael J. Astrue as the defendant in this suit. No 27 further action need be taken to continue this suit by reason of the last sentence of 42 28 U.S.C. § 405(g). ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT - 1 Dockets.Justia.com 1 A hearing was held before Administrative Law Judge (ALJ) Caroline Siderius on 2 November 8, 2010. At the hearing, Plaintiff, represented by counsel, testified as well as 3 vocational expert Trevor Duncan. The ALJ concluded that Plaintiff was not disabled. The 4 Appeals Council denied Plaintiff's request for review making the ALJ's decision the final 5 decision of the Commissioner. Pursuant to 42 U.S.C. § 405(g), this final decision is 6 appealable to the district court. Plaintiff sought judicial review on June 22, 2012. FACTS 7 8 9 The facts of the case are set forth in detail in the transcript of the proceedings and are briefly summarized here. 10 Plaintiff was 34 years old at the time of the hearing. (Tr. 37) He dropped out of 11 high school in ninth grade. (Tr. 47) While in school he was in special education classes. 12 (Tr. 47) He has a GED and some college. (Tr. 39) 13 Plaintiff has physical complaints as well as mental health issues. Not long before he 14 appeared for his hearing, Plaintiff had undergone surgery for his diverticulitis. (Tr. 40) A 15 section of his intestine had been removed and his surgeon estimated that he may not fully 16 recover for a year. (Tr. 41) Plaintiff also suffers from asthma and uses an inhaler from five 17 to ten times a day. (Tr. 41) He believed his greatest inhibiting symptom preventing him 18 from working is his inability to control his temper. (Tr. 41) He has a criminal history 19 stemming from assaultive behavior. (Tr. 50) Plaintiff indicated that his work ability was 20 limited by paranoia and his temper. (Tr. 49, 53 – 54) He regularly visits his therapist and 21 takes several medications to address his various mental health issues. (Tr. 52) 22 Plaintiff is homeless but reports he lives with his sister or his friend. (Tr. 39) 23 He indicates that he had a more active social life while residing in Spokane, but since 24 moving to the Tri-Cities, he has no friends. (Tr. 45) He has regular visitation with his two 25 daughters. (Tr. 46 -47) He sees them at his ex-wife's house about every other day. Id. 26 SEQUENTIAL PROCESS 27 The Commissioner has established a five-step sequential evaluation process for 28 determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 416.920(a); see ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT - 2 1 Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). In steps one through four, the burden 2 of proof rests upon the claimant to establish a prima facie case of entitlement to disability 3 benefits. 4 met once a claimant establishes that a physical or mental impairment prevents him from 5 engaging in his previous occupation. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). If 6 a claimant cannot do his past relevant work, the ALJ proceeds to step five, and the 7 burden shifts to the Commissioner to show that (1) the claimant can make an adjustment 8 to other work; and (2) specific jobs exist in the national economy which claimant can 9 perform. Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999). This burden is Batson v. Comm'r, Soc. Sec. Admin., 359 F.3d 1190, 1193-94 (9th 2004). 10 If a claimant cannot make an adjustment to other work in the national economy, a 11 finding of "disabled" is made. 20 C.F.R. §§ 404.1520(a)(4)(i-v), 416.920(a)(4)(i-v). ADMINISTRATIVE DECISION 12 13 14 At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since October 22, 2008, the alleged onset date. 15 At step two, the ALJ found that Plaintiff had the following severe impair- 16 ments: asthma, bipolar disorder, attention deficit hyperactivity disorder, and anxiety 17 disorder. 18 At step three, the ALJ found that Plaintiff did not have an impairment or 19 combination of impairments that met or medically equaled any of the listed impairments 20 described at 20 C.F.R. Part 404, Subpart P, Appendix 1(20 C.F.R. §§ 416.920(d), 416.925, 21 and 416.926). 22 23 24 25 The ALJ found that Plaintiff had the residual functional capacity (RFC) to perform medium work subject to some limitations. At step four, the ALJ concluded that Plaintiff is not capable of performing past relevant work as an office helper or fry cook. 26 At step five, the ALJ determined that based on Plaintiff's age, education, work 27 experience, and RFC, jobs exist in significant numbers in the national economy that 28 Plaintiff can perform including an office cleaner. ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT - 3 1 2 3 4 5 6 7 8 9 10 11 STANDARD OF REVIEW In Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001), the court set out the standard of review: A district court’s order upholding the Commissioner’s denial of benefits is reviewed de novo. Harman v. Apfel, 211 F.3d 1172, 1174 (9th Cir. 2000). The decision of the Commissioner may be reversed only if it is not supported by substantial evidence or if it is based on legal error. [Tackett, 180 F.3d at 1097]. Substantial evidence is defined as being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put another way, substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational interpretation, the court may not substitute its judgment for that of the Commissioner. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin. 169 F.3d 595, 599 (9th Cir. 1999). 14 The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, although deference is owed to a reasonable construction of the applicable statutes. McNatt v. Apfel, 201 F.3d 1084, 1087 (9th Cir. 2000). 15 It is the role of the trier of fact, not this court, to resolve conflicts in evidence. 16 Richardson, 402 U.S. at 400. If evidence supports more than one rational interpretation, 17 the court may not substitute its judgment for that of the Commissioner. Tackett, 180 F.3d 18 at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). Nevertheless, a decision 19 supported by substantial evidence will still be set aside if the ALJ did not apply the 20 proper legal standards in weighing the evidence and making the decision. Brawner v. 21 Secretary of Health and Human Servs., 839 F.2d 432, 433 (9th Cir. 1988). If substantial 22 evidence exists to support the administrative findings, or if conflicting evidence exists 23 that will support a finding of either disability or non-disability, the Commissioner's 24 determination is conclusive. 12 13 25 26 Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). ISSUES 27 Plaintiff alleges that the ALJ erred in four ways: 28 1. The ALJ erred in rejecting Plaintiff's schizophrenia at step two. ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT - 4 1 2. The ALJ improperly rejected opinions of Dr. Karim Saleh, Richard W. Cantrell, 2 LMHC, Carole Siefken, ARNP and examining medical source, Kathleen Laws. 3 3. The ALJ improperly rejected Plaintiff's subjective complaints. 4 4. The ALJ did not meet her burden at step five because the hypothetical given to 5 the vocational expert was incomplete. DISCUSSION 6 7 8 9 10 11 12 13 14 15 Step Two- Schizophrenia The ALJ did not err at step two. The ALJ made appropriate findings regarding Plaintiff's mental health conditions; failure to find schizophrenia to be a severe condition is consistent with the record. "The term “disability” means inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment." 42 U.S.C. § 423(d)(1)(A) (West). Nothing in the record reflects a diagnosis of schizophrenia. Plaintiff's self-diagnosis is insufficient to make a finding of a medically determinable impairment. Dr. Jerry Gardner performed a psychiatric review dated July 20, 2009, wherein he checked the box "Schizophrenic, Paranoid, and Other Psychotic Disorders" as a category upon which the medical disposition was based (Tr. 242), but 16 indicated in his notes that Plaintiff was in therapy for anger management, mood stability, 17 ADHD, anxiety, and auditory hallucinations, but that medication was keeping Plaintiff's 18 symptoms under control. (Tr. 254) Dr. Gardner ultimately found that Plaintiff's mental 19 impairments were not severe. (Tr. 25) Dr. Gardner made no diagnosis of schizophrenia. 20 Rejection of Medical Opinions 21 Dr. Saleh 22 "[W]hen the Appeals Council considers new evidence in deciding whether to review 23 a decision of the ALJ, that evidence becomes part of the administrative record, which the 24 district court must consider when reviewing the Commissioner's final decision for 25 substantial evidence." Brewes v. Comm'r of Soc. Sec. Admin., 682 F.3d 1157, 1163 (9th 26 Cir. 2012) 27 consider the additional evidence only where it relates to the period on or before the date of 28 the administrative law judge hearing decision." 20 C.F.R. § 416.1470(b). Dr. Saleh's "[I]f new and material evidence is submitted, the Appeals Council shall ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT - 5 1 evaluation is dated July 13, 2011. He does not specify the time period for his assessment 2 and based on the content, it is not clear that he meant it to apply to the time period starting 3 in October 2008 through the time of the administrative hearing. 4 Richard Cantrell, ARNP Carole Siefken, and Kathleen Laws 5 “When there is conflicting medical evidence, the Secretary must determine 6 credibility and resolve the conflict.” Matney v. Sullivan, 981 F.2d 1016, 1019 (9th 7 Cir.1992). "If a treating or examining doctor's opinion is contradicted by another doctor's 8 opinion, an ALJ may only reject it by providing specific and legitimate reasons that are 9 supported by substantial evidence. Also, when evaluating conflicting medical opinions, an 10 ALJ need not accept the opinion of a doctor if that opinion is brief, conclusory, and 11 inadequately supported by clinical findings." Bayliss v. Barnhart, 427 F.3d 1211, 1216 12 (9th Cir. 2005) "The opinions of non-treating or non-examining physicians may also serve 13 as substantial evidence when the opinions are consistent with independent clinical findings 14 or other evidence in the record." Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). 15 "An ALJ may reject a treating physician's opinion if it is based to a large extent on a 16 claimant's self-reports that have been properly discounted as incredible." Tommasetti v. 17 Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). "[O]nly acceptable medical sources can be 18 considered treating sources, as defined in 20 CFR 404.1502 and 416.902, whose medical 19 opinions may be entitled to controlling weight." Titles II & XVI:II & XVI: Considering 20 Opinions & Other Evidence from Sources Who Are Not "Acceptable Med. Sources" in 21 Disability Claims; Considering Decisions on Disability by Other Governmental & 22 Nongovernmental Agencies, SSR 06-03P (S.S.A Aug. 9, 2006). 23 The ALJ's decision to give little weight to the opinions of Kathleen Laws and Carole 24 Siefken is supported by substantial evidence. 25 providers are acceptable medical sources. Neither Ms. Laws nor ARNP Siefken appear to 26 have had any ongoing contact with Plaintiff, rather they completed one form each 27 regarding Plaintiff's limitations for DSHS. There is no evidence in the record suggesting 28 that Ms. Laws or Ms. Siefken conducted any testing or an evaluation beyond Plaintiff's ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT - 6 The ALJ noted that neither of these 1 self-report. Other medical sources indicated concerns regarding the truthfulness of 2 Plaintiff's self-reports and suggest the possibility of malingering. 3 Rick Cantrell 4 Unlike Ms. Laws and Ms. Siefken, Mr. Cantrell met with Plaintiff on a regular basis 5 and treated him. Though the ALJ correctly noted that Mr. Cantrell is a not acceptable 6 medical source, the rationale for rejecting Mr. Cantrell ignored his role in treating Plaintiff 7 and did not address the fact that he had ongoing observations and interactions with the 8 Plaintiff. The Court is not suggesting that the ALJ's ultimate conclusions were necessarily 9 incorrect — only that the decision was conclusory and failed to provide reasons for 10 rejecting, or even accepting, Mr. Cantrell's opinion. It is the province of the ALJ, not the 11 Court, to assess the medical evidence. The Court cannot affirm the ALJ's conclusions on 12 grounds that were not invoked by the ALJ. Ceguerra v. Sec'y of Health & Human Servs., 13 933 F.2d 735, 738 (9th Cir. 1991). The Court shall remand to allow the ALJ to assess and 14 either credit or properly reject Mr. Cantrell's opinions. 15 Plaintiff's Credibility 16 The ALJ must provide a specific, cogent rationale for discounting Plaintiff's 17 subjective complaints. "Without affirmative evidence showing that the claimant is 18 malingering, the Commissioner's reasons for rejecting the claimant's testimony must be 19 clear and convincing." Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th 20 Cir. 1999). "[T]he ALJ must make a credibility determination citing the reasons why the 21 testimony is unpersuasive. The ALJ must specifically identify what testimony is credible 22 and what testimony undermines the claimant's complaints." Id. (internal citations omitted). 23 "The ALJ may consider at least the following factors when weighing the claimant's 24 credibility: claimant's reputation for truthfulness, inconsistencies either in claimant's 25 testimony or between her testimony and her conduct, claimant's daily activities, her work 26 record, and testimony from physicians and third parties concerning the nature, severity, 27 and effect of the symptoms of which claimant complains." Thomas v. Barnhart, 278 F.3d 28 947, 958-59 (9th Cir. 2002) (internal citation omitted) ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT - 7 1 The ALJ's determination that Plaintiff's statements concerning the intensity, 2 persistence and limiting effects of his symptoms is supported by clear and convincing 3 evidence. 4 Plaintiff's credibility. 5 inconsistences between the information the claimant reported to him and to another 6 evaluator." (Tr. 23) A review of Plaintiff's statements showed several inconsistencies 7 which would support a finding that Plaintiff's self-reporting is less than completely 8 credible. Lastly, the ALJ noted that there was "no objective medical evidence to support 9 the alleged severity and limited effects of claimant's mental impairments." (Tr. 24) The ALJ provided several instances in the record that called to question According to the ALJ, "Dr. Genthe reported numerous 10 Adequacy of the Hypothetical 11 Though the hypothetical accurately encompassed the RFC determined by the ALJ, 12 since the Court is remanding to allow the ALJ to consider Mr. Cantrell's opinion, the 13 hypothetical may be reconsidered and reframed on remand if necessary. 14 Remand or Award Benefits 15 According to Smolen, the Court should credit improperly rejected evidence 16 and remand for an award of benefits when: "(1) the ALJ has failed to provide legally 17 sufficient reasons for rejecting such evidence, (2) there are no outstanding issues that 18 must be resolved before a determination of disability can be made, and (3) it is clear 19 from the record that the ALJ would be required to find the claimant disabled were 20 such evidence credited." Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir.1996). Though 21 the Court does find that the ALJ did not properly reject Mr. Cantrell's opinion, crediting 22 his opinion would not necessarily lead to a determination of disability in light of 23 the contrary opinions in evidence. Nor does the Court necessarily endorse crediting his 24 opinion. 25 CONCLUSION 26 Though the ALJ's opinion is in most aspects supported by substantial evidence, 27 remand is appropriate on the limited issue of addressing Mr. Cantrell's opinion and 28 reformulating the RFC and hypothetical if necessary. Having reviewed the record and the ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT - 8 1 ALJ's findings, the Court concludes the ALJ's decision is based on legal error. 2 Accordingly, 3 IT IS ORDERED that: 4 1. Plaintiff's Motion for Summary Judgment, filed January 22, 2013, ECF No. 16, 5 is GRANTED. 2. Defendant's Motion for Summary Judgment, filed March 4, 20134, ECF No. 22, 6 7 is DENIED. The District Court Executive is directed to file this Order and provide copies to 8 9 counsel. Judgment shall be entered for Plaintiff and the file shall be CLOSED. DATED this 23rd day of January, 2014. 10 11 12 13 14 01-22-14 s/ Wm. Fremming Nielsen WM. FREMMING NIELSEN SENIOR UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT - 9
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