Garcia v. Colvin, No. 2:2013cv03073 - Document 33 (E.D. Wash. 2014)

Court Description: DECISION AND ORDER granting 23 Plaintiff's Motion for Summary Judgment; denying 28 Commissioner's Motion for Summary Judgment. Signed by Magistrate Judge Victor E. Bianchini. (MO, Courtroom Deputy)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 Case No. 13-CV-03073-VEB MIGUEL JESUS GARCIA, 10 Plaintiff, DECISION AND ORDER 11 vs. 12 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 13 Defendant. 14 15 I. INTRODUCTION 16 In November of 2009, Plaintiff Miguel Jesus Garcia applied for Supplemental 17 Security Income ( SSI ) benefits and Disability Insurance Benefits ( DIB ) under 18 the Social Security Act. The Commissioner of Social Security denied the 19 applications. 20 1 DECISION AND ORDER GARCIA v COLVIN 13-CV-03073-VEB 1 Plaintiff, represented by D. James Tree, Esq., commenced this action seeking 2 judicial review of the Commissioner s denial of benefits pursuant to 42 U.S.C. §§ 3 405 (g) and 1383 (c)(3). The parties consented to the jurisdiction of a United States 4 Magistrate Judge. (Docket No. 7). 5 On May 1, 2014, the Honorable Rosanna Malouf Peterson, Chief United 6 States District Judge, referred this case to the undersigned pursuant to 28 U.S.C. § 7 636(b)(1)(A) and (B). (Docket No. 29). 8 9 II. BACKGROUND 10 The procedural history may be summarized as follows: 11 On November 10, 2009, Plaintiff applied for SSI benefits and DIB, alleging 12 disability beginning March 14, 2009. (T at 125-32, 133-36).1 The applications were 13 denied initially and Plaintiff requested a hearing before an Administrative Law 14 Judge ( ALJ ). On January 12, 2012, a hearing was held before ALJ Marie 15 Palachuk. (T at 43). Plaintiff appeared with an attorney and testified. (T at 54-61, 16 62-64). The ALJ also received testimony from Polly Peterson, a vocational expert 17 (T at 61-62, 64-69). and Dr. Richard Hutson, a medical expert. (T at 47-54). 18 19 20 1 Citations to ( T ) refer to the administrative record at Docket No. 13. 2 DECISION AND ORDER GARCIA v COLVIN 13-CV-03073-VEB 1 On February 2, 2012, the ALJ issued a decision denying the applications for 2 benefits. (T at 19-36). 3 decision on May 23, 2013, when the Appeals Council denied Plaintiff s request for 4 review. (T at 1-6). The ALJ s decision became the Commissioner s final 5 On July 16, 2013, Plaintiff, acting by and through his counsel, timely 6 commenced this action by filing a Complaint in the United States District Court for 7 the Eastern District of Washington. (Docket No. 5). The Commissioner interposed 8 an Answer on October 21, 2013. (Docket No. 12). 9 Plaintiff filed a motion for summary judgment on February 14, 2014. (Docket 10 No. 23). The Commissioner moved for summary judgment on April 28, 2014. 11 (Docket No. 28). As noted above, the parties consented to the jurisdiction of a 12 Magistrate Judge. (Docket No. 7). 13 14 For the reasons set forth below, the Commissioner s motion is denied, Plaintiff s motion is granted, and this case is remanded for further proceedings. 15 16 17 18 19 20 3 DECISION AND ORDER GARCIA v COLVIN 13-CV-03073-VEB III. DISCUSSION 1 2 A. Sequential Evaluation Process 3 The Social Security Act ( the Act ) defines disability as the inability to 4 engage in any substantial gainful activity by reason of any medically determinable 5 physical or mental impairment which can be expected to result in death or which has 6 lasted or can be expected to last for a continuous period of not less than twelve 7 months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a 8 plaintiff shall be determined to be under a disability only if any impairments are of 9 such severity that a plaintiff is not only unable to do previous work but cannot, 10 considering plaintiff s age, education and work experiences, engage in any other 11 substantial work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 12 1382c(a)(3)(B). Thus, the definition of disability consists of both medical and 13 vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). 14 The Commissioner has established a five-step sequential evaluation process 15 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520, 416.920. Step 16 one determines if the person is engaged in substantial gainful activities. If so, 17 benefits are denied. 20 C.F.R. §§ 404. 1520(a)(4)(i), 416.920(a)(4)(i). If not, the 18 decision maker proceeds to step two, which determines whether plaintiff has a 19 medially severe impairment or combination of impairments. 20 C.F.R. §§ 20 4 DECISION AND ORDER GARCIA v COLVIN 13-CV-03073-VEB 1 404.1520(a)(4)(ii), 416.920(a)(4)(ii). 2 If plaintiff does not have a severe impairment or combination of impairments, 3 the disability claim is denied. If the impairment is severe, the evaluation proceeds to 4 the third step, which compares plaintiff s impairment with a number of listed 5 impairments acknowledged by the Commissioner to be so severe as to preclude 6 substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); 20 7 C.F.R. § 404 Subpt. P App. 1. If the impairment meets or equals one of the listed 8 impairments, plaintiff is conclusively presumed to be disabled. If the impairment is 9 not one conclusively presumed to be disabling, the evaluation proceeds to the fourth 10 step, which determines whether the impairment prevents plaintiff from performing 11 work which was performed in the past. If a plaintiff is able to perform previous work 12 that plaintiff is deemed not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 13 416.920(a)(4)(iv). At this step, plaintiff s residual functional capacity (RFC) is 14 considered. If plaintiff cannot perform past relevant work, the fifth and final step in 15 the process determines whether plaintiff is able to perform other work in the national 16 economy in view of plaintiff s residual functional capacity, age, education and past 17 work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Bowen v. 18 Yuckert, 482 U.S. 137 (1987). 19 20 The initial burden of proof rests upon plaintiff to establish a prima facie case 5 DECISION AND ORDER GARCIA v COLVIN 13-CV-03073-VEB 1 of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 2 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden is 3 met once plaintiff establishes that a mental or physical impairment prevents the 4 performance of previous work. The burden then shifts, at step five, to the 5 Commissioner to show that (1) plaintiff can perform other substantial gainful 6 activity and (2) a significant number of jobs exist in the national economy that 7 plaintiff can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). 8 B. Standard of Review 9 Congress has provided a limited scope of judicial review of a Commissioner s 10 decision. 42 U.S.C. § 405(g). A Court must uphold a Commissioner s decision, 11 made through an ALJ, when the determination is not based on legal error and is 12 supported by substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 13 1985); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). The [Commissioner s] 14 determination that a plaintiff is not disabled will be upheld if the findings of fact are 15 supported by substantial evidence. Delgado v. Heckler, 722 F.2d 570, 572 (9th Cir. 16 1983)(citing 42 U.S.C. § 405(g)). Substantial evidence is more than a mere scintilla, 17 Sorenson v. Weinberger, 514 F.2d 1112, 1119 n 10 (9th Cir. 1975), but less than a 18 preponderance. McAllister v. Sullivan, 888 F.2d 599, 601-02 (9th Cir. 1989). 19 Substantial evidence means such evidence as a reasonable mind might accept as 20 6 DECISION AND ORDER GARCIA v COLVIN 13-CV-03073-VEB 1 adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 2 (1971)(citations omitted). [S]uch inferences and conclusions as the [Commissioner] 3 may reasonably draw from the evidence will also be upheld. Mark v. Celebreeze, 4 348 F.2d 289, 293 (9th Cir. 1965). On review, the Court considers the record as a 5 whole, not just the evidence supporting the decision of the Commissioner. Weetman 6 v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989)(quoting Kornock v. Harris, 648 F.2d 525, 7 526 (9th Cir. 1980)). 8 It is the role of the Commissioner, not this Court, to resolve conflicts in 9 evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational 10 interpretation, the Court may not substitute its judgment for that of the 11 Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th 12 Cir. 1984). Nevertheless, a decision supported by substantial evidence will still be 13 set aside if the proper legal standards were not applied in weighing the evidence and 14 making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 15 432, 433 (9th Cir. 1987). Thus, if there is substantial evidence to support the 16 administrative findings, or if there is conflicting evidence that will support a finding 17 of either disability or nondisability, the finding of the Commissioner is conclusive. 18 Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 19 20 7 DECISION AND ORDER GARCIA v COLVIN 13-CV-03073-VEB 1 C. Commissioner s Decision 2 The ALJ found that Plaintiff had not engaged in substantial gainful activity 3 since March 14, 2009 (the alleged onset date) and met the insured status 4 requirements under the Social Security Act through December 31, 2013. (T at 24). 5 The ALJ determined that Plaintiff s lumbar degenerative disc disease and obesity 6 were impairments considered severe under the Act. (Tr. 24). 7 However, the ALJ concluded that Plaintiff did not have an impairment or 8 combination of impairments that met or medically equaled one of the impairments 9 set forth in the Listings. (T at 24-25). The ALJ determined that Plaintiff retained the 10 residual functional capacity ( RFC ) to perform light work, as defined in 20 CFR § 11 416.967 (b) and §404.1567 (b), except that he could only balance, stoop, kneel, 12 crouch, or crawl occasionally; could never climb ladders, ropes, or scaffolds; must 13 avoid concentrated exposure to temperatures, wetness, and humidity; and avoid all 14 exposure to hazards. (T at 25-29). 15 The ALJ found that Plaintiff could not perform his past relevant work as an 16 order filler, painter, grape harvest workers, construction worker, or caregiver. (T at 17 29). However, considering Plaintiff s age (31 years old on the alleged onset date), 18 education (high school), and RFC (light work, with non-exertional limitations as 19 20 8 DECISION AND ORDER GARCIA v COLVIN 13-CV-03073-VEB 1 outlined above), the ALJ determined that there were jobs that exist in significant 2 numbers in the national economy that Plaintiff can perform. (T at 29-30). 3 As such, the ALJ concluded that Plaintiff had not been disabled, as defined 4 under the Act, from November 10, 2009 (the alleged onset date), through February 5 2, 2012 (the date of her decision) and was therefore not entitled to benefits. (Tr. 30- 6 31). As noted above, the ALJ s decision became the Commissioner s final decision 7 when the Appeals Council denied Plaintiff s request for review. (Tr. 1-6). 8 D. Plaintiff s Arguments 9 Plaintiff contends that the Commissioner s decision should be reversed. He 10 offers two (2) main arguments in support of this position. First, Plaintiff contends 11 that the ALJ erred by discounting the opinions of Plaintiff s treating and examining 12 physicians. Second, he challenges the ALJ s credibility determination. This Court 13 will address both arguments in turn. 14 15 16 17 IV. ANALYSIS A. Treating/Examining Physician Opinions Dr. Adam Hoverman had a significant treating relationship with Plaintiff. (T 18 at 550, 862). 19 occasions that Plaintiff could not return to full duty work and could not lift, climb, 20 9 During the spring of 2009, Dr. Hoverman opined on multiple DECISION AND ORDER GARCIA v COLVIN 13-CV-03073-VEB 1 bend, or stoop. (T at 509, 515, 518, 523, 524). In October of 2009, Dr. Hoverman 2 completed a physical evaluation form, in which he noted that Plaintiff had 3 experienced minimal improvement from treatment. (T at 582). He opined that 4 lumbar radiculopathy would cause marked to severe limitations in Plaintiff s ability 5 to perform basic work-related activities. (T at 583). Dr. Hoverman assessed several 6 significant limitations with regard to Plaintiff s mobility, agility, and flexibility, but 7 opined that he could perform sedentary work. (T at 583). 8 Dr. Hoverman completed another evaluation in March of 2010. He again 9 assessed severe limitations with regard to Plaintiff s ability to perform basic work- 10 related activities. (T at 579). He opined that Plaintiff s overall work level was 11 severely limited. (T at 579). In May of 2010, Dr. Hoverman reported that Plaintiff 12 needed to avoid any lifting/carrying/pushing or pulling over 5 pounds; any 13 stooping/kneeling/twisting/bending; and noted that he would need to rest after 14 standing or sitting for more than 30 minutes. (T at 718). He opined that Plaintiff was 15 limited to sedentary work. (T at 718). 16 In October of 2010, Dr. Phillip Mendoza, another treating physician, opined 17 that Plaintiff could not perform any lifting, would need to change positions every 15 18 minutes, and needed 2 hours per day to rest lying down. (T at 727). Dr. Mendoza 19 concluded that Plaintiff was limited to sedentary work. (T at 728). He recommended 20 10 DECISION AND ORDER GARCIA v COLVIN 13-CV-03073-VEB 1 physical therapy, analgesic pain medications, and consultation with a pain specialist. 2 (T at 728). 3 In June of 2011, Dr. Mendoza reported that Plaintiff could not maintain any 4 position for greater than 10 minutes, would have trouble focusing due to pain, and 5 could not lift more than 5 pounds. (T at 730). He opined that Plaintiff could perform 6 sedentary work. (T at 731). 7 In September of 2011, Dr. Mendoza reported that Plaintiff would need to lie 8 down 5-7 times for 30 minutes to 1 hour each day due to back pain. (T at 698). He 9 noted that medications made Plaintiff drowsy and did not relieve his pain. (T at 698). 10 Dr. Mendoza described Plaintiff s prognosis as poor and noted that increased 11 activity worsened his condition. (T at 699). In December of 2010, Dr. Mendoza 12 again noted Plaintiff s need to lie down frequently during the day, opined that he 13 was restricted from heavy lifting and prolonged sitting or standing, but characterized 14 Plaintiff s prognosis as good. (T at 696). He indicated that Plaintiff would likely 15 miss 4 or more days per month because of his conditions. (T at 697). 16 Dr. Daniel Seltzer, an independent medical examiner, completed an 17 examination in October of 2009. He diagnosed lumbar sprain/strain, multi-level 18 lumbar disc protrusion (L4-5 and L5-S1), and possible lumbar radiculopathy (right 19 greater than left), along with a possible psychological condition or pain disorder. (T 20 11 DECISION AND ORDER GARCIA v COLVIN 13-CV-03073-VEB 1 at 886). Dr. Seltzer opined that Plaintiff was not a candidate to return to work and 2 should not engage in any activities beyond a sedentary level. (T at 888). 3 Dr. Fred Thysell, another medical examiner, noted that Plaintiff should not be 4 released to work. (T at 894). He completed a medical opinion questionnaire in 5 October of 2011, in which he opined that Plaintiff was limited in terms of bending 6 and lifting. (T at 914). 7 The ALJ gave Dr. Hoverman s opinions little weight. (T at 28). 8 likewise discounted the findings of Dr. Seltzer, Dr. Mendoza, and Dr. Thysell in 9 rendering her assessment of Plaintiff s residual functional capacity. (T at 28-29). 10 11 He For the reasons that follow, this Court finds that the ALJ did not adequately develop the record and a remand is required. 12 The ALJ s primary reason for discounting the treating/examining physician 13 opinions was her conclusion that their opinions were largely based on Plaintiff s 14 subjective complaints, which the ALJ found to be not credible. (T at 28). The ALJ 15 cited evidence suggesting pain magnification and malingering in support of her 16 decision to discount Plaintiff s credibility. In particular, in April of 2009, Drs. 17 William Stump and Chester McLaughlin performed a joint independent medical 18 examination. They observed [m]arked nonphysiologic pain behavior . . . with 19 significant inconsistencies to suggest malingering. (T at 490). Dr. Stump and Dr. 20 12 DECISION AND ORDER GARCIA v COLVIN 13-CV-03073-VEB 1 McLaughlin believed there was a voluntary component to Plaintiff s pain 2 behavior. (T at 491). 3 4 However, the ALJ did not take adequate account of evidence suggesting that Plaintiff s pain behavior might be the result of a psychological disorder. 5 First, Plaintiff s treating and examining providers, who had the opportunity to 6 observe him over an extended period of time, credited his complaints, which suggest 7 that the complaints may have been genuine (albeit perhaps a function of a 8 psychological issue, as opposed to having a physiological cause). 9 Second, the record contained several recommendations that Plaintiff be 10 evaluated for a psychological pain disorder. Dr. Hoverman (who had a lengthy 11 treating relationship with Plaintiff) recommended at least three times that Plaintiff 12 receive a psychological evaluation and testing for a psychological condition and/or 13 pain disorder. (T at 639, 647, 650, 719). In a March 2011 treatment note, Vern 14 Commet, a treating nurse practitioner, opined that it might be beneficial for Plaintiff 15 to seek psychological counseling and undergo therapy for his pain disorder. (T at 16 837). In a January 2012 report submitted to the Appeals Council, Dr. Seltzer (an 17 examining physician) noted a [p]ossible psychological condition or pain disorder, 18 which he deferred to the appropriate psychological specialist. (T at 924). 19 20 13 DECISION AND ORDER GARCIA v COLVIN 13-CV-03073-VEB 1 There is no question that the ALJ has a duty to assist in developing the 2 record. Armstrong v. Commissioner of Soc. Sec. Admin., 160 F.3d 587, 589 (9th 3 Cir. 1998); 20 C.F.R. §§ 404.1512(d)-(f); see also Sims v. Apfel, 530 U.S. 103, 110- 4 11, 147 L. Ed. 2d 80, 120 S. Ct. 2080 (2000) ( Social Security proceedings are 5 inquisitorial rather than adversarial. It is the ALJ s duty to investigate the facts and 6 develop the arguments both for and against granting benefits . . . . ). 7 One of the tools the ALJ has to develop the record is the ability to order a 8 consultative examination, i.e., a physical or mental examination or test purchased 9 for [a claimant] at [the Commissioner s] request and expense. 20 C.F.R. §§ 10 404.1519, 416.919. 11 examination is generally triggered by ambiguous evidence. See Tonapetyan v. 12 Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). The ALJ s duty to develop the record via a consultative 13 Here, given the evidence discussed above, the ALJ should have ordered a 14 psychiatric consultative examination before discounting the treating/examining 15 physicians opinions. Although, some (non-treating) physicians believed Plaintiff s 16 pain behavior was the result of voluntary malingering, others suggested that it 17 might have been caused by a psychological disorder and recommended further 18 evaluation. Notably, the providers recommending further evaluation had longer 19 term, treating relationships with Plaintiff, which should have given their assessments 20 14 DECISION AND ORDER GARCIA v COLVIN 13-CV-03073-VEB 1 greater weight. Accordingly, the ALJ erred in failing to appropriately develop the 2 record by failing to obtain a psychiatric consultative examination and a remand is 3 required. 4 B. Credibility 5 A claimant s subjective complaints concerning his or her limitations are an 6 important part of a disability claim. Batson v. Comm r of Soc. Sec. Admin., 359 F.3d 7 1190, 1195 (9th Cir. 2004)(citation omitted). The ALJ s findings with regard to the 8 claimant s credibility must be supported by specific cogent reasons. Rashad v. 9 Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent affirmative evidence of 10 malingering, the ALJ s reasons for rejecting the claimant s testimony must be clear 11 and convincing. Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). General 12 findings are insufficient: rather the ALJ must identify what testimony is not credible 13 and what evidence undermines the claimant s complaints. Lester, 81 F.3d at 834; 14 Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 15 However, subjective symptomatology by itself cannot be the basis for a 16 finding of disability. A claimant must present medical evidence or findings that the 17 existence of an underlying condition could reasonably be expected to produce the 18 symptomatology alleged. See 42 U.S.C. §§423(d)(5)(A), 1382c (a)(3)(A); 20 C.F.R. 19 § 404.1529(b), 416.929; SSR 96-7p. 20 15 DECISION AND ORDER GARCIA v COLVIN 13-CV-03073-VEB 1 In this case, the ALJ determined that Plaintiff s medically determinable 2 impairments could reasonably be expected to cause the alleged symptoms, but found 3 his statements concerning the intensity, persistence, and limiting effects of the 4 symptoms not fully credible. (T at 25). The ALJ cited the lack of objective medical 5 evidence supporting Plaintiff s allegations, along with the suggestions of 6 malingering, but failed to adequately account for the indications (including 7 observations and recommendations from treating physicians) that Plaintiff s pain 8 behavior might be caused by an underlying psychological disorder. This assessment 9 cannot be sustained for the reasons outlined above. Thus, Plaintiff s credibility 10 should be reassessed on remand following further development of the record (in the 11 form of a psychological consultative evaluation) on remand. 12 C. Remand 13 In a case where the ALJ's determination is not supported by substantial 14 evidence or is tainted by legal error, the court may remand the matter for additional 15 proceedings or an immediate award of benefits. Remand for additional proceedings 16 is proper where (1) outstanding issues must be resolved, and (2) it is not clear from 17 the record before the court that a claimant is disabled. See Benecke v. Barnhart, 379 18 F.3d 587, 593 (9th Cir. 2004). 19 20 16 DECISION AND ORDER GARCIA v COLVIN 13-CV-03073-VEB 1 Here, as set forth above, there is ambiguous evidence concerning Plaintiff s 2 pain behavior. 3 consultative examination to assess the nature and extent of Plaintiff's mental health 4 problems, if any. The ALJ shall thereafter conduct a new sequential evaluation, 5 taking into consideration the consultative examination as well as all other credible 6 evidence of record. This ambiguity can and should be addressed on remand via a 7 8 9 V. ORDERS 10 11 IT IS THEREFORE ORDERED that: 12 Plaintiff s motion for summary judgment, Docket No. 23, is GRANTED; 13 The Commissioner s motion for summary judgment, Docket No. 28, is 14 15 16 DENIED; This case is remanded for further proceedings consistent with this Decision and Order; 17 The District Court Executive is directed to file this Order, provide copies to 18 counsel, enter judgment in favor of Plaintiff and hold this case open for a period of 19 20 17 DECISION AND ORDER GARCIA v COLVIN 13-CV-03073-VEB 1 sixty (60) days to allow Plaintiff s counsel an opportunity to apply for an award of 2 attorneys fees and costs. 3 DATED this 18th day of September, 2014. 4 5 6 /s/Victor E. Bianchini VICTOR E. BIANCHINI UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 18 DECISION AND ORDER GARCIA v COLVIN 13-CV-03073-VEB

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