Hartelius v. Colvin, No. 2:2013cv05117 - Document 25 (E.D. Wash. 2014)
Court Description: ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT granting 13 Motion for Summary Judgment; denying 21 Motion for Summary Judgment Signed by Senior Judge Robert H. Whaley. (VR, Courtroom Deputy)
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Hartelius v. Colvin Doc. 25 1 2 3 4 5 6 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON PATRICIA HARTELIUS, No. CV-13-5117-RHW 7 8 Plaintiff, 9 v. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 10 11 CAROLYN W. COLVIN, Commissioner of Social Security, 12 13 Defendant. 14 15 BEFORE THE COURT are cross-motions for summary judgment. ECF 16 Nos. 13, 21. Attorney D. James Tree represents Plaintiff; Special Assistant 17 United States Attorney Richard A. Morris represents the Commissioner of Social 18 Security (Defendant). After reviewing the administrative record and the briefs 19 filed by the parties, the court GRANTS Plaintiff’s Motion for Summary Judgment 20 and DENIES Defendant’s Motion for Summary Judgment. 21 22 JURISDICTION On October 5, 2010, Plaintiff filed an application for a period of disability 23 and disability insurance benefits, alleging disability beginning September 18, 2009. 24 Tr. 24; 191. Plaintiff indicated that she was unable to work due to injuries to her 25 back and hip. Tr. 205. The claim was denied initially, denied upon 26 reconsideration, and Plaintiff subsequently requested a hearing. Tr. 112-47. On 27 April 17, 2007, ALJ Gene Duncan presided over an administrative hearing at 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 1 Dockets.Justia.com 1 which medical expert James Haynes, M.D., vocational expert Patricia Ayerza, and 2 Plaintiff, who was represented by counsel, testified. Tr. 44-110. ALJ Duncan 3 found that Plaintiff established she was disabled from the filing date through the 4 date of the hearing, but the ALJ concluded that Plaintiff had “medically improved” 5 beginning the date after the hearing, and from that date forward Plaintiff could 6 perform sedentary work. Tr. 30. 7 Plaintiff requested review from the Appeals Council, and along with the 8 request, Plaintiff submitted several medical reports dated April 4, 2012 through 9 August, 23, 2012. Tr. 5. The Appeals Council declined review. Tr. 1-6. The 10 instant matter is before this court pursuant to 42 U.S.C. § 405(g). 11 12 STATEMENT OF FACTS At the time of the hearing, Plaintiff was 54 years old, five feet two inches 13 tall, and weighed 230 pounds. Tr. 50-51; 79. She graduated from high school, and 14 attended college for one and one-half years. Tr. 50. She lived with her husband, 15 and she had grown children who lived nearby. Tr. 86-87. Plaintiff’s past work 16 included working as a cashier, casino card dealer, and telephone service 17 representative. Tr. 215. 18 In September, 2009, Plaintiff stepped off a curb and suffered a jarring, 19 painful injury to her low back. Tr. 272, 286. Since that date, Plaintiff has 20 experienced continuing low back and lower right extremity pain that is aggravated 21 with physical activity. Tr. 377. 22 Plaintiff testified that she cooks and loads the dishwasher daily, she does 23 laundry every two to three days, and she cannot perform vacuuming or yard work. 24 Tr. 86-87. Plaintiff also said she does some grocery shopping, only purchasing 25 light items that she can lift. Tr. 87. 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 2 1 2 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 3 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 4 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 5 deference to a reasonable construction of the applicable statutes. McNatt v. Apfel, 6 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 7 only if it is not supported by substantial evidence or if it is based on legal error. 8 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 9 defined as being more than a mere scintilla, but less than a preponderance. Id. at 10 1098. Put another way, substantial evidence is such relevant evidence as a 11 reasonable mind might accept as adequate to support a conclusion. Richardson v. 12 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one 13 rational interpretation, the court may not substitute its judgment for that of the 14 ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 15 169 F.3d 595, 599 (9th Cir. 1999). Nevertheless, a decision supported by 16 substantial evidence will still be set aside if the proper legal standards were not 17 applied in weighing the evidence and making the decision. Brawner v. Secretary 18 of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). If substantial 19 evidence supports the administrative findings, or if conflicting evidence supports a 20 finding of either disability or non-disability, the ALJ’s determination is conclusive. 21 Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). 22 23 SEQUENTIAL PROCESS The Commissioner has established a five-step sequential evaluation process 24 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 25 416.920(a); see Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). In steps one 26 through four, the burden of proof rests upon the claimant to establish a prima facie 27 case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-99. This 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 3 1 burden is met once a claimant establishes that a physical or mental impairment 2 prevents him from engaging in his previous occupation. 20 C.F.R. §§ 3 404.1520(a)(4), 416.920(a)(4). If a claimant cannot do his past relevant work, the 4 ALJ proceeds to step five, and the burden shifts to the Commissioner to show that 5 (1) the claimant can make an adjustment to other work; and (2) specific jobs exist 6 in the national economy which claimant can perform. Batson v. Commissioner of 7 Social Sec. Admin., 359 F.3d 1190, 1193-94 (2004). If a claimant cannot make an 8 adjustment to other work in the national economy, a finding of “disabled” is made. 9 20 C.F.R. §§ 404.1520(a)(4)(I-v), 416.920(a)(4)(I-v). 10 11 ALJ’S FINDINGS At step one of the sequential evaluation process, the ALJ found Plaintiff had 12 not engaged in substantial gainful activity since September 18, 2009, the alleged 13 onset date. Tr. 27. At step two, the ALJ found that during the time period 14 September 18, 2009 through April 17, 2012, Plaintiff had the following severe 15 impairments: sacroiliac strain, spondylosis, myofascial pain syndrome, marked 16 obesity, and a cancerous tumor on thigh. Tr. 28. At step three, the ALJ concluded 17 that Plaintiff did not have an impairment or combination of impairments that meets 18 or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 19 404, Subpart P, Appendix 1 (20 C.F.R. 416.929(d), 416.925 and 416.926). Tr. 28. 20 The ALJ found that from September 18, 2009 through April 17, 2012, the 21 Plaintiff’s residual functional capacity was less than sedentary, Plaintiff was unable 22 to perform any past relevant work, and considering her age, education, work 23 experience, and residual functional capacity, no jobs existed in significant numbers 24 in the national economy that Plaintiff could have performed, and thus Plaintiff was 25 disabled for a closed period. Tr. 30. By contrast, the ALJ found that as of April 26 18, 2012, Plaintiff had medically improved and from that date forward, she had the 27 capacity for “a wide range of sedentary work,” she had no new impairments, and 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 4 1 thus she was no longer disabled. Tr. 31. The ALJ concluded as of April 18, 2012, 2 Plaintiff could return to her past relevant work as a customer service 3 representative, and thus she was disabled for a closed period. Tr. 32. ISSUE 4 The parties agree that the ALJ erred by finding that Plaintiff experienced 5 6 “medical improvement” and therefore was no longer disabled. ECF No. 13 at 3; 7 ECF No. 21 at 5-8. Plaintiff argues that the case should be remanded for benefits. 8 ECF No. 13 at 15. Defendant disagrees and argues that the proper remedy is to 9 reverse the ALJ’s decision in its entirety, and remand for a new, full sequential 10 evaluation. ECF No. 21 at 8-9. Plaintiff replies that the Defendant waived this 11 argument and the Court lacks jurisdiction to grant such relief. ECF No. 23 at 5-6. DISCUSSION 12 13 14 A. Effect of Concession. Plaintiff contends that as a result of Defendant’s concession, the proper 15 remedy is remand for an award of benefits. In its motion for summary judgment, 16 Defendant twice conceded error. The first concession acknowledged: 17 18 19 20 21 The Commissioner agrees with the Plaintiff that the ALJ did not adequately address the medical evidence and Plaintiff’s statements. Thus, the finding that, beginning April 18, 2012, Plaintiff could perform her past relevant work, and was not under a disability, is not supported. The Commissioner concedes error. 22 ECF No. 21 at 5. The plain meaning of this concession reveals Defendant’s 23 agreement that as of April 18, 2012, Plaintiff could not perform her past relevant 24 work, and she remained disabled. This position contradicts Defendant’s argument 25 that this case must be remanded for an entirely new sequential evaluation. 26 27 Defendant’s second concession included the acknowledgement that the ALJ erred in finding Plaintiff had little credibility after April 17, 2012: 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 5 1 Plaintiff argues the medical evidence of record does not support the ALJ’s finding that her disability ended on April 18, 2012, due to medical improvement. ECF No. 13 at 11-13. She also argues the ALJ committed harmful error by finding she was no longer credible after her disability ended. ECF No. 13 at 14. The Commissioner concedes that the ALJ did not properly consider this evidence. The ALJ erred in determining whether medical improvement had occurred to the point of non-disability pursuant to the eight-step sequential evaluation process in 20 C.F.R. §404.1594. In turn the ALJ’s erroneous evaluation of the medical improvement issue directly affected the ALJ’s assessment of Plaintiff’s credibility. 2 3 4 5 6 7 8 9 10 ECF No. 21 at 8. Defendant’s concession and Defendant’s request to remand for 11 12 reconsideration of the sequential process are in fatal conflict. Defendant’s explicit 13 wording conceded that the ALJ erred by finding Plaintiff’s disability ended due to 14 medical improvement. Thus, Defendant’s concession is inconsistent with a request 15 to remand for reconsideration of the entire sequential evaluation. 16 B. Lack of Jurisdiction. Plaintiff contends that Defendant’s request for remand for a “re-evaluation 17 18 of the evidence and continuation of the disability evaluation process” is not 19 properly before this Court because Defendant waived the argument and as a result, 20 the Court lacks jurisdiction to grant the remedy Defendant seeks. ECF No. 21 at 5. Defendant cites no legal authority to support its request to remand for a full 21 22 23 24 25 26 27 reconsideration of Plaintiff’s claims on the merits.1 Under the administrative 1 Defendant simply asserted: However, upon review of the entire record, the Commissioner has determined that the medical opinions and objective evidence of record do not conclusively establish a finding of disability for any period between Plaintiff’s alleged onset date of September 18, 2009, and the hearing decision date of May 22, 2012. ECF No. 21 at 8 (emphasis in original). 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 6 1 regulations related to the Social Security Act, the Secretary is authorized to review 2 any decision of an ALJ on her own motion. 20 C.F.R. § 404.969. The Appeals 3 Council may initiate review within 60 days after the date of the decision. Id. In 4 this case, the Appeals Council did not initiate review, and as a result, Defendant’s 5 request to remand the case for a full reconsideration is untimely. 6 Similarly, the other regulations that allow the Defendant to reopen Plaintiff’s 7 case are not applicable in this case, nor has Defendant argued that these regulations 8 apply. For instance, the Secretary may reopen a previous determination or 9 decision under certain conditions. 20 C.F.R. § 404.987(b). A case may be 10 reopened within one year “for any reason,” and within four years upon a finding of 11 “good cause.” 20 C.F.R. § 404.988. “Good cause” is defined in 20 C.F.R. 12 404.989, and includes “[t]he evidence that was considered in making the 13 determination or decision clearly shows on its face that an error was made.” 20 14 C.F.R. 404.989 (a)(3). In this case, because more than one year elapsed, 15 Defendant must establish “good cause” exists in order to reopen Plaintiff’s case. 16 However, Defendant failed to establish, much less provide meaningful argument, 17 that the ALJ’s determination “clearly shows on its face” that an error was made. In 18 the absence of legal support allowing Defendant to reopen Plaintiff’s case for full 19 reconsideration on the merits, the argument fails. 20 Finally, as Plaintiff points out, Defendant failed to provide a specific 21 argument to support the allegations that the ALJ erred. Defendant did not cite case 22 law or other legal authority to support the request for a full reconsideration, and 23 Defendant failed to identify evidence that the ALJ allegedly improperly weighed. 24 In short, Defendant failed to set forth a meaningful argument to support the 25 summary assertion that the medical opinions and objective evidence failed to 26 support the ALJ’s determination Plaintiff was disabled. The court ordinarily will 27 not consider matters on appeal that are not specifically and distinctly argued in an 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 7 1 appellant's opening brief. See Carmickle v. Comm'r Soc. Sec. Admin., 533 F.3d 2 1155, 1161 n.2 (9th Cir. 2008). Moreover, the Ninth Circuit has repeatedly 3 admonished that the court will not "manufacture arguments” for a party and 4 therefore will not consider claims that were not actually argued in a party’s 5 opening brief. Greenwood v. Fed. Aviation Admin., 28 F.3d 971, 977 (9th Cir. 6 1994). Defendants have failed to provide argument, briefing, and legal authority to 7 8 support its request to remand for a full reconsideration of the sequential evaluation. 9 In light of the circumstances of this case, including Defendant’s concessions, 10 remand for an immediate award of benefits is the proper remedy. CONCLUSION 11 12 Having reviewed the record, the ALJ's findings, Plaintiff’s argument and 13 Defendant’s concession, the Court concludes the ALJ's decision that Plaintiff’s 14 disability ended due to medical improvement is based on legal error, and the case 15 should be remanded for an immediate award of benefits. The decision is therefore 16 REVERSED and the case is REMANDED for further proceedings consistent with 17 this opinion. Accordingly, 18 IT IS HEREBY ORDERED: 1. 19 20 GRANTED. 2. 21 22 Plaintiff's Motion for Summary Judgment (ECF No. 13) is Defendant's Motion for Summary Judgment (ECF No. 21) is DENIED. 3. 23 24 /// 25 /// 26 /// 27 An application for attorney fees may be filed by separate motion. /// 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 8 1 4. 2 The District Court Executive is directed to file this Order and provide a copy 3 4 Judgment shall be entered for Plaintiff. to counsel for plaintiff and defendant and CLOSE the file. DATED this 19th day of December, 2014. 5 6 7 8 s/Robert H. Whaley ROBERT H. WHALEY Senior United States District Judge 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 - 9
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