Friedlander v. Colvin, No. 2:2013cv00336 - Document 23 (E.D. Wash. 2014)

Court Description: DECISION AND ORDER granting ECF No. 15 Plaintiff's Motion for Summary Judgment; and denying ECF No. 20 Commissioner's Motion for Summary Judgment. This case is REMANDED to the Commissioner for further proceedings consistent with this Decision and Order. The District Court Executive is directed to file this Order, provide copies to counsel, enter judgment in favor of the Plaintiff, and keep the case open for a period of sixty (60) days to allow Plaintiffs counsel an opportunity to submit an application for attorneys fees. Signed by Magistrate Judge Victor E. Bianchini. (TR, Intake Clerk)

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1 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 2 Aug 18, 2014 3 SEAN F. MCAVOY, CLERK 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 Case No. 13-CV-00336 (VEB) 8 ANNA M. FRIEDLANDER, 9 DECISION AND ORDER Plaintiff, 10 vs. 11 12 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 13 Defendant. 14 I. INTRODUCTION 15 In January of 2010, Plaintiff Anna M. Friedlander applied for Supplemental 16 Security Income ( SSI ) benefits and Disability Insurance Benefits ( DIB ) under 17 the Social Security Act. The Commissioner of Social Security denied the 18 applications. 19 20 1 DECISION AND ORDER FRIEDLANDER v COLVIN 13-CV-00336-VEB 1 Plaintiff, represented by the Law Offices of Dana Madsen, Joseph Linehan, 2 Esq., of counsel, commenced this action seeking judicial review of the 3 Commissioner s denial of benefits pursuant to 42 U.S.C. §§ 405 (g) and 1383 (c)(3). 4 The parties consented to the jurisdiction of a United States Magistrate Judge. 5 (Docket No. 8). 6 On May 1, 2014, the Honorable Rosanna Malouf Peterson, Chief United 7 States District Judge, referred this case to the undersigned pursuant to 28 U.S.C. § 8 636(b)(1)(A) and (B). (Docket No. 16). 9 10 II. BACKGROUND 11 The procedural history may be summarized as follows: 12 On January 12, 2010, Plaintiff applied for SSI benefits and DIB, alleging 13 disability beginning October 21, 2009. (T at 174-85).1 The applications were denied 14 initially and Plaintiff requested a hearing before an Administrative Law Judge 15 ( ALJ ). On February 21, 2012, a hearing was held before ALJ Caroline Siderius. 16 (T at 58). Plaintiff appeared with her attorney and testified. (T at 69-95, 98). The 17 ALJ also received testimony from Daniel McKinney, a vocational expert (T at 95- 18 102) and John Morse, a medical expert. (T at 63-69). 19 1 20 Citations to ( T ) refer to the administrative record at Docket No. 11. 2 DECISION AND ORDER FRIEDLANDER v COLVIN 13-CV-00336-VEB 1 On March 12, 2012, ALJ Siderius issued a written decision denying the 2 applications for benefits and finding that Plaintiff was not disabled within the 3 meaning of the Social Security Act. (T at 29-50). The ALJ s decision became the 4 Commissioner s final decision on July 23, 2013, when the Social Security Appeals 5 Council denied Plaintiff s request for review. (T at 1-7). 6 On September 19, 2013, Plaintiff, acting by and through her counsel, timely 7 commenced this action by filing a Complaint in the United States District Court for 8 the Eastern District of Washington. (Docket No. 5). The Commissioner interposed 9 an Answer on November 25, 2013. (Docket No. 10). 10 Plaintiff filed a motion for summary judgment on March 31, 2014. (Docket 11 No. 15). The Commissioner moved for summary judgment on June 10, 2014. 12 (Docket No. 20). Plaintiff filed a reply brief on June 25, 2014. (Docket No. 22). For the reasons set forth below, the Commissioner s motion is denied, 13 14 Plaintiff s motion is granted, and this case is remanded for further proceedings. 15 16 17 III. DISCUSSION A. Sequential Evaluation Process 18 The Social Security Act ( the Act ) defines disability as the inability to 19 engage in any substantial gainful activity by reason of any medically determinable 20 3 DECISION AND ORDER FRIEDLANDER v COLVIN 13-CV-00336-VEB 1 physical or mental impairment which can be expected to result in death or which has 2 lasted or can be expected to last for a continuous period of not less than twelve 3 months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a 4 plaintiff shall be determined to be under a disability only if any impairments are of 5 such severity that a plaintiff is not only unable to do previous work but cannot, 6 considering plaintiff s age, education and work experiences, engage in any other 7 substantial work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 8 1382c(a)(3)(B). Thus, the definition of disability consists of both medical and 9 vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). 10 The Commissioner has established a five-step sequential evaluation process 11 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520, 416.920. Step 12 one determines if the person is engaged in substantial gainful activities. If so, 13 benefits are denied. 20 C.F.R. §§ 404. 1520(a)(4)(i), 416.920(a)(4)(i). If not, the 14 decision maker proceeds to step two, which determines whether plaintiff has a 15 medially severe impairment or combination of impairments. 20 C.F.R. §§ 16 404.1520(a)(4)(ii), 416.920(a)(4)(ii). 17 If plaintiff does not have a severe impairment or combination of impairments, 18 the disability claim is denied. If the impairment is severe, the evaluation proceeds to 19 the third step, which compares plaintiff s impairment with a number of listed 20 4 DECISION AND ORDER FRIEDLANDER v COLVIN 13-CV-00336-VEB 1 impairments acknowledged by the Commissioner to be so severe as to preclude 2 substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); 20 3 C.F.R. § 404 Subpt. P App. 1. If the impairment meets or equals one of the listed 4 impairments, plaintiff is conclusively presumed to be disabled. If the impairment is 5 not one conclusively presumed to be disabling, the evaluation proceeds to the fourth 6 step, which determines whether the impairment prevents plaintiff from performing 7 work which was performed in the past. If a plaintiff is able to perform previous work 8 that plaintiff is deemed not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 9 416.920(a)(4)(iv). At this step, plaintiff s residual functional capacity (RFC) is 10 considered. If plaintiff cannot perform past relevant work, the fifth and final step in 11 the process determines whether plaintiff is able to perform other work in the national 12 economy in view of plaintiff s residual functional capacity, age, education and past 13 work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Bowen v. 14 Yuckert, 482 U.S. 137 (1987). 15 The initial burden of proof rests upon plaintiff to establish a prima facie case 16 of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 17 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden is 18 met once plaintiff establishes that a mental or physical impairment prevents the 19 performance of previous work. The burden then shifts, at step five, to the 20 5 DECISION AND ORDER FRIEDLANDER v COLVIN 13-CV-00336-VEB 1 Commissioner to show that (1) plaintiff can perform other substantial gainful 2 activity and (2) a significant number of jobs exist in the national economy that 3 plaintiff can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). 4 B. Standard of Review 5 Congress has provided a limited scope of judicial review of a Commissioner s 6 decision. 42 U.S.C. § 405(g). A Court must uphold a Commissioner s decision, 7 made through an ALJ, when the determination is not based on legal error and is 8 supported by substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 9 1985); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). The [Commissioner s] 10 determination that a plaintiff is not disabled will be upheld if the findings of fact are 11 supported by substantial evidence. Delgado v. Heckler, 722 F.2d 570, 572 (9th Cir. 12 1983)(citing 42 U.S.C. § 405(g)). Substantial evidence is more than a mere scintilla, 13 Sorenson v. Weinberger, 514 F.2d 1112, 1119 n 10 (9th Cir. 1975), but less than a 14 preponderance. McAllister v. Sullivan, 888 F.2d 599, 601-02 (9th Cir. 1989). 15 Substantial evidence means such evidence as a reasonable mind might accept as 16 adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 17 (1971)(citations omitted). [S]uch inferences and conclusions as the [Commissioner] 18 may reasonably draw from the evidence will also be upheld. Mark v. Celebreeze, 19 348 F.2d 289, 293 (9th Cir. 1965). On review, the Court considers the record as a 20 6 DECISION AND ORDER FRIEDLANDER v COLVIN 13-CV-00336-VEB 1 whole, not just the evidence supporting the decision of the Commissioner. Weetman 2 v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989)(quoting Kornock v. Harris, 648 F.2d 525, 3 526 (9th Cir. 1980)). 4 It is the role of the Commissioner, not this Court, to resolve conflicts in 5 evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational 6 interpretation, the Court may not substitute its judgment for that of the 7 Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th 8 Cir. 1984). Nevertheless, a decision supported by substantial evidence will still be 9 set aside if the proper legal standards were not applied in weighing the evidence and 10 making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 11 432, 433 (9th Cir. 1987). Thus, if there is substantial evidence to support the 12 administrative findings, or if there is conflicting evidence that will support a finding 13 of either disability or nondisability, the finding of the Commissioner is conclusive. 14 Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 15 C. Commissioner s Decision 16 The ALJ found that Plaintiff had not engaged in substantial gainful activity 17 since October 21, 2009, the alleged onset date, and met the insured status 18 requirements of the Social Security Act through September 30, 2013. (T at 34). The 19 ALJ determined that Plaintiff s fibromyalgia, degenerative joint disease, depression, 20 7 DECISION AND ORDER FRIEDLANDER v COLVIN 13-CV-00336-VEB 1 mild osteoarthritis, morbid obesity, and gastritis were impairments considered 2 severe under the Act. (Tr. 35-36). 3 However, the ALJ concluded that Plaintiff did not have an impairment or 4 combination of impairments that met or medically equaled one of the impairments 5 set forth in the Listings. (T at 36-37). The ALJ determined that Plaintiff retained the 6 residual functional capacity ( RFC ) to perform light work, as defined in 20 CFR § 7 416.967 (b), except that she was limited to occasional pushing or pulling with her 8 lower extremities, should avoid climbing ladders, ropes, or scaffold, and was limited 9 to occasional climbing stairs, climbing ramps, balancing, stooping, crawling, 10 kneeling, and crouching. (T at 37). The ALJ concluded that Plaintiff needed to 11 avoid concentrated exposure to temperatures, wetness, vibrations, and the operation 12 of heavy machinery. In addition, she could not work at unprotected heights and was 13 limited to a maximum of three-step tasks. (T at 37). 14 The ALJ concluded that Plaintiff could not perform her past relevant work. (T 15 at 43). However, considering Plaintiff s age (46 on the alleged onset date), 16 education (limited), work experience, and RFC (light work, with non-exertional 17 limitations outlined above), the ALJ concluded that there were jobs that exist in 18 significant numbers in the national economy that Plaintiff can perform. (T at 43-44). 19 20 8 DECISION AND ORDER FRIEDLANDER v COLVIN 13-CV-00336-VEB 1 As such, the ALJ concluded that Plaintiff was not disabled, as defined under 2 the Act, between October 21, 2009 (the alleged onset date) and March 12, 2012 (the 3 date of the ALJ s decision) and was therefore not entitled to benefits. (Tr. 44-45). 4 As noted above, the ALJ s decision became the Commissioner s final decision when 5 the Appeals Council denied Plaintiff s request for review. (Tr. 1-7). 6 7 IV. ANALYSIS 8 The ALJ found that Plaintiff s medically determinable impairments could 9 reasonably be expected to cause the alleged symptoms, but concluded that her 10 statements concerning the intensity, persistence, and limiting effects of the 11 symptoms were not entirely credible. (T at 40). For the following reasons, this 12 Court finds the ALJ s decision flawed and concludes that a remand is required. 13 The ALJ noted Plaintiff s history of substance abuse (in particular, cocaine 14 abuse) (T at 400, 494) and concluded that there was a question of whether 15 substance abuse or dependence is a contributing factor in her allegations of total 16 disability . . . . (T at 38). The ALJ then used the issue of substance abuse to 17 discount Plaintiff s credibility. (T at 38). 18 procedure for addressing substance abuse in the Social Security disability context. However, this was not the proper 19 20 9 DECISION AND ORDER FRIEDLANDER v COLVIN 13-CV-00336-VEB 1 When a Social Security disability claim involves substance abuse, the ALJ 2 must first conduct the general five-step sequential evaluation without determining 3 the impact of substance abuse on the claimant. If the ALJ finds that the claimant is 4 not disabled, then the ALJ proceeds no further. If, however, the ALJ finds that the 5 claimant is disabled, then the ALJ conducts the sequential evaluation and second 6 time and considers whether the claimant would still be disabled absent the substance 7 abuse. See Bustamente v. Massanari, 262 F.3d 949, 955 (9th Cir. 2001), 20 CFR §§ 8 404.1535, 416.935. 9 Here, the ALJ did not follow this process and thus deviated from the 10 applicable legal requirements. Curiously, the ALJ cited the applicable Regulations 11 (T at 38), but did not actually conduct the analysis required thereunder. Although 12 Plaintiff bears the burden of proving that her drug use is not a contributing factor 13 material to the disability determination, the ALJ was obliged to develop the record 14 and resolve the issue one way or the other. See Gibson v. Astrue, No. CV 06-3003, 15 2008 U.S. Dist. LEXIS 26962, at *5-6 (D. Ariz. Mar. 31, 2008). Indeed, some 16 courts have concluded that if the ALJ cannot resolve the question of whether 17 substance abuse is a contributing factor, the claimant has met her burden and an 18 award of benefits should follow. See, e.g. Outin v. Astrue, No. C 10-1764, 2011 U.S. 19 20 10 DECISION AND ORDER FRIEDLANDER v COLVIN 13-CV-00336-VEB 1 Dist. LEXIS 87958, at *15 (N.D.Ca Aug. 9, 2011); Brueggemann v. Barnhart, 348 2 F.3d 689, 693-95 (8th Cir. 2003). 3 An ALJ errs where, as here, she considers the claimant s substance abuse in 4 her analysis without conducting the two-step process outlined in 20 CFR § 404.1535 5 and § 416.935. See Reid v. Astrue, No. 08-5249, 2009 U.S. Dist. LEXIS 119858, at 6 *22-26 (N.D. Ca. Dec. 23, 2009)( While the record contains ample evidence that 7 Reid has a history of substance use, the ALJ did not explain, nor cite evidence 8 indicating, how and to what extent Reid's substance abuse contributed to his 9 disability status. ). Accordingly, because the ALJ did not follow the applicable 10 legal standard, this Court cannot determine whether substantial evidence supports 11 her determination. Id. at *26. A remand is therefore required. 12 In a case where the ALJ's determination is not supported by substantial 13 evidence or is tainted by legal error, the court may remand the matter either for 14 additional proceedings or an immediate award of benefits. Remand for additional 15 proceedings is proper where (1) outstanding issues must be resolved, and (2) it is not 16 clear from the record before the court that the claimant is disabled. See Benecke v. 17 Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). 18 19 20 11 DECISION AND ORDER FRIEDLANDER v COLVIN 13-CV-00336-VEB 1 Here, the outstanding issue of Plaintiff s substance abuse must be resolved for 2 the reasons outlined above. In addition, it is not clear from the record before this 3 Court whether Plaintiff is disabled. 4 In November of 2010, Karen Severns, a social worker, provided an 5 assessment of Plaintiff s mental health limitations. Ms. Severns had, at that time, 6 been providing psychological counseling to Plaintiff for two months. She diagnosed 7 post-traumatic stress disorder (delayed onset), major depression (recurrent, severe), 8 anxiety disorder NOS, and dysthmic disorder. (T at 443). Ms. Severns assigned a 9 Global Assessment of Functioning ( GAF )2 score of 34 (T at 443), which 10 indicates some impairment in reality testing or communication (e.g., speech is at 11 times illogical, obscure, or irrelevant) or major impairment in several areas such as 12 work or school, family relations, judgment, thinking or mood. Tagin v. Astrue, No. 13 11-cv-05120, 2011 U.S. Dist. LEXIS 136237 at *8 n.1 (W.D.Wa. Nov. 28, 14 2011)(citations omitted). 15 However, the ALJ noted that the contemporaneous treatment notes did not 16 provide much support for Ms. Severns s assessment. (T at 40-41). Dr. John Morse, 17 a medical expert, testified that Plaintiff could occasionally lift 20 pounds and 18 2 A GAF score is a rough estimate of an individual's psychological, social, and occupational 19 functioning used to reflect the individual's need for treatment." Vargas v. Lambert, 159 F.3d 1161, 1164 n.2 (9th Cir. 1998). 20 12 DECISION AND ORDER FRIEDLANDER v COLVIN 13-CV-00336-VEB 1 frequently lift 10 pounds, stand/walk for 6 hours in an 8-hour workday, and sit for 6 2 hours in an 8-hour workday. (T at 66). He found no push/pull limitations, modest 3 postural and environmental limitations, and no manipulative, visual, or 4 communicative limitations. (T at 66). 5 Dr. Sharon Underwood, a non-examining State Agency psychiatric review 6 consultant, assessed mild restriction as to Plaintiff s activities of daily living, mild 7 difficulties in maintaining social functioning, and moderate difficulties in 8 maintaining concentration, persistence, or pace. (T at 456). She opined that Plaintiff 9 could perform simple work and detailed tasks (if she was familiar with it). (T at 10 462). Dr. Underwood also concluded that Plaintiff could adjust to simple changes in 11 the workplace, set goals independently, avoid hazards, and travel. (T at 462). 12 There is thus conflicting evidence concerning the extent of Plaintiff s 13 limitations and, as noted above, inadequate analysis by the ALJ concerning the 14 substance abuse issue. 15 appropriate remedy. 16 17 18 Accordingly, a remand for further proceedings is the V. ORDERS IT IS THEREFORE ORDERED that: Plaintiff s motion for summary judgment, Docket No. 15, is GRANTED. 19 20 13 DECISION AND ORDER FRIEDLANDER v COLVIN 13-CV-00336-VEB 1 2 3 4 The Commissioner s motion for summary judgment, Docket No. 20, is DENIED. This case is REMANDED to the Commissioner for further proceedings consistent with this Decision and Order. 5 The District Court Executive is directed to file this Order, provide copies to 6 counsel, enter judgment in favor of the Plaintiff, and keep the case open for a period 7 of sixty (60) days to allow Plaintiff s counsel an opportunity to submit an 8 application for attorneys fees. 9 DATED this 18th day of August, 2014. 10 11 12 /s/Victor E. Bianchini VICTOR E. BIANCHINI UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 14 DECISION AND ORDER FRIEDLANDER v COLVIN 13-CV-00336-VEB

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