Mundall v. Commissioner of Social Security, No. 2:2016cv00307 - Document 16 (E.D. Wash. 2017)

Court Description: ORDER granting ECF No. 12 Plaintiff's Motion for Summary Judgment; denying ECF No. 13 Defendant's Motion for Summary Judgment. FILE CLOSED. Signed by Magistrate Judge John T. Rodgers. (TR, Case Administrator)

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Mundall v. Commissioner of Social Security Doc. 16 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 10 LISA EVELYN MUNDALL, No. 2:16-CV-00307-JTR Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 11 12 13 14 15 v. COMMISSIONER OF SOCIAL SECURITY, Defendant. 16 17 BEFORE THE COURT are cross-motions for summary judgment. ECF 18 No. 12, 13. Attorney Rosemary B. Schurman represents Lisa Evelyn Mundall 19 (Plaintiff); Special Assistant United States Attorney Daphne Banay represents the 20 Commissioner of Social Security (Defendant). The parties have consented to 21 proceed before a magistrate judge. ECF No. 4. After reviewing the administrative 22 record and the briefs filed by the parties, the Court GRANTS Plaintiff’s Motion 23 for Summary Judgment; DENIES Defendant’s Motion for Summary Judgment; 24 and REMANDS the matter to the Commissioner for additional proceedings 25 pursuant to 42 U.S.C. § 405(g). 26 JURISDICTION 27 Plaintiff filed an application for Disability Insurance Benefits (DIB) on 28 January 11, 2013, Tr. 194, alleging disability since September 5, 2011, Tr. 166- ORDER GRANTING PLAINTIFF’S MOTION . . . - 1 Dockets.Justia.com 1 167, due to anxiety, depression, post-traumatic stress disorder (PTSD), chronic 2 lumbar pain, and chronic S.I. pain. Tr. 198. The applications were denied initially 3 and upon reconsideration. Tr. 107-109, 111-112. Administrative Law Judge 4 (ALJ) Jesse K. Shumway held a hearing on March 10, 2015 and heard testimony 5 from Plaintiff, vocational expert, Daniel McKinney, and medical expert, Anthony 6 Francis, M.D. Tr. 40-82. The ALJ issued an unfavorable decision on March 27, 7 2015. Tr. 13-29. The Appeals Council denied review on July 14, 2016. Tr. 1-7. 8 The ALJ’s March 27, 2015 decision became the final decision of the 9 Commissioner, which is appealable to the district court pursuant to 42 U.S.C. § 10 405(g). Plaintiff filed this action for judicial review on August 29, 2016. ECF No. 11 1. STATEMENT OF FACTS 12 The facts of the case are set forth in the administrative hearing transcript, the 13 14 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 15 here. 16 Plaintiff was 43 years old at the alleged date of onset. Tr. 175. Plaintiff 17 completed a Bachelor of Arts degree in creative writing in 1990. Tr. 199, 281. 18 Plaintiff worked as an attendant counselor caring for the developmentally disabled 19 from 1990 through her alleged date of onset. Tr. 199, 281. Plaintiff reported that 20 she was injured on September 5, 2011 and returned to work on October 26, 2011 21 for only two hours before she was assaulted by a patient. Tr. 199, 282, 292. She 22 reported that she stopped working due to her conditions. Tr. 198. 23 24 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 25 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 26 1039 (9th Cir. 1995). The Court reviews the ALJ’s determinations of law de novo, 27 deferring to a reasonable interpretation of the statutes. McNatt v. Apfel, 201 F.3d 28 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is ORDER GRANTING PLAINTIFF’S MOTION . . . - 2 1 not supported by substantial evidence or if it is based on legal error. Tackett v. 2 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as 3 being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put 4 another way, substantial evidence is such relevant evidence as a reasonable mind 5 might accept as adequate to support a conclusion. Richardson v. Perales, 402 6 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational 7 interpretation, the court may not substitute its judgment for that of the ALJ. 8 Tackett, 180 F.3d at 1097. If substantial evidence supports the administrative 9 findings, or if conflicting evidence supports a finding of either disability or non- 10 disability, the ALJ’s determination is conclusive. Sprague v. Bowen, 812 F.2d 11 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision supported by 12 substantial evidence will still be set aside if the proper legal standards were not 13 applied in weighing the evidence and making the decision. Brawner v. Secretary 14 of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 15 SEQUENTIAL EVALUATION PROCESS 16 The Commissioner has established a five-step sequential evaluation process 17 for determining whether a person is disabled. 20 C.F.R. § 404.1520(a), see Bowen 18 v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through four, the burden of 19 proof rests upon the claimant to establish a prima facie case of entitlement to 20 disability benefits. Tackett, 180 F.3d at 1098-1099. This burden is met once the 21 claimant establishes that physical or mental impairments prevent her from 22 engaging in her previous occupations. 20 C.F.R. § 404.1520(a)(4). If the claimant 23 cannot do her past relevant work, the ALJ proceeds to step five, and the burden 24 shifts to the Commissioner to show that (1) the claimant can make an adjustment to 25 other work, and (2) specific jobs exist in the national economy which the claimant 26 can perform. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193-1194 27 (9th Cir. 2004). If the claimant cannot make an adjustment to other work in the 28 national economy, a finding of “disabled” is made. 20 C.F.R. § 404.1520(a)(4)(v). ORDER GRANTING PLAINTIFF’S MOTION . . . - 3 1 ADMINISTRATIVE DECISION 2 On March 27, 2015, the ALJ issued a decision finding Plaintiff was not 3 4 5 6 7 disabled as defined in the Social Security Act. At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since September 5, 2011, the alleged onset date. Tr. 15. At step two, the ALJ determined Plaintiff had the following severe impairments: degenerative disc disease, PTSD, and depression. Tr. 15. 8 At step three, the ALJ found Plaintiff did not have an impairment or 9 combination of impairments that met or medically equaled the severity of one of 10 11 the listed impairments. Tr. 16. At step four, the ALJ assessed Plaintiff’s residual function capacity and 12 found that from September 5, 2011 through May 21, 2014, Plaintiff could perform 13 a range of sedentary work with the following restrictions: 14 15 16 17 18 19 20 she could not climb ladders, ropes, or scaffolds, could only frequently balance, could only occasionally perform all other postural activities; could only frequently use foot controls bilaterally; could have no concentrated exposure to extreme cold, vibration, and pulmonary irritants; could have no exposure to hazards, including unprotected heights and moving mechanical parts; could perform only simple, routine, repetitive tasks; and could have only superficial contact with co-workers, supervisors, and the public. 21 Tr. 18. Then from May 21, 2014 through the date of the decision, the ALJ found 22 Plaintiff had a “slightly different,” residual functional capacity “reflecting 23 improvement in her physical condition, but deterioration in her mental health.” Id. 24 Specifically, the ALJ found she could perform a range of light work, with the 25 nonexertional limitations from the above residual functional capacity plus “she 26 could have no interaction with the public.” Id. The ALJ identified Plaintiff’s past 27 relevant work as an orderly and concluded that Plaintiff was not able to perform 28 this past relevant work. Tr. 26. ORDER GRANTING PLAINTIFF’S MOTION . . . - 4 1 At step five, the ALJ determined that, considering Plaintiff’s age, education, 2 work experience and residual functional capacity, and based on the testimony of 3 the vocational expert, there were other jobs that exist in significant numbers in the 4 national economy Plaintiff could perform from onset to May 21, 2014, including 5 the jobs of clock assembler, hand bander, table work, and production assembler. 6 Tr. 28. The ALJ then made a separate step five determination for May 21, 2014 to 7 the date of the decision, finding Plaintiff could perform the jobs of production 8 assembler and electronics worker. Id. The ALJ concluded Plaintiff was not under 9 a disability within the meaning of the Social Security Act at any time from 10 September 5, 2011, through the date of the ALJ’s decision, March 27, 2015. Id. ISSUES 11 The question presented is whether substantial evidence supports the ALJ’s 12 13 decision denying benefits and, if so, whether that decision is based on proper legal 14 standards. Plaintiff contends the ALJ erred by (1) failing to properly consider her 15 testimony regarding her mental limitations and (2) failing to properly assess all the 16 evidence when forming Plaintiff’s residual functional capacity. ECF No. 12 at 2. DISCUSSION 17 18 19 20 A. Plaintiff’s Testimony Plaintiff contests the ALJ’s determination that her mental health symptom allegations were less than fully credible. ECF No. 12 at 5-11. 21 It is generally the province of the ALJ to make credibility determinations, 22 Andrews, 53 F.3d at 1039, but the ALJ’s findings must be supported by specific 23 cogent reasons, Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent 24 affirmative evidence of malingering, the ALJ’s reasons for rejecting the claimant’s 25 testimony must be “specific, clear and convincing.” Smolen v. Chater, 80 F.3d 26 1273, 1281 (9th Cir. 1996); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). 27 “General findings are insufficient: rather the ALJ must identify what testimony is 28 not credible and what evidence undermines the claimant’s complaints.” Lester, 81 ORDER GRANTING PLAINTIFF’S MOTION . . . - 5 1 2 F.3d at 834. The ALJ found Plaintiff less than fully credible concerning the intensity, 3 persistence, and limiting effects of her symptoms. Tr. 20. The ALJ reasoned that 4 Plaintiff was less than fully credible concerning her alleged mental limitations 5 because (1) the degree of limitation was not supported by the evidence of record, 6 (2) she was able to speak and answer questions at the hearing, and (3) she was 7 currently engaged in vocational rehabilitation. Tr. 25-26. 8 1. Evidence of Record 9 The ALJ found Plaintiff’s testimony was less than fully credible, stating the 10 alleged degree of limitation resulting from her mental impairments were not 11 supported by the evidence of record. Tr. 25. First, the ALJ found that “there was 12 evidence that claimant experienced some trouble with concentration in December 13 2012,” but testified that her impairments only began to increase after she had been 14 out of work for a year. Tr. 25. Plaintiff testified that her symptoms developed 15 after she stopped working, “during the next year or so.” Tr. 64. Plaintiff’s alleged 16 date of onset was in September of 2011. From September of 2011 to December of 17 2012 is about a “year or so.” As such, Plaintiff’s testimony was consistent with the 18 record. 19 Next, the ALJ stated that “while the claimant continued to have nightmares 20 and remained suspicious of vehicles traveling by her house, the record also 21 indicates that the claimant had removed the covering from all her windows and 22 was walking around her yard without the cover of tarps,” citing to the record at 406 23 through 408 and 556. Tr. 26. 24 At the March 10, 2015 hearing, Plaintiff testified that there was a plywood 25 billboard with a tarp at the bottom blocking her porch from the view of a neighbor. 26 Tr. 61-62. She testified that originally she had “tarps going all the way around my 27 backyard.” Tr. 62. She additionally testified that she “put some tarps up on my 28 garden fence” in order to do some gardening. Tr. 63. She acknowledged that her ORDER GRANTING PLAINTIFF’S MOTION . . . - 6 1 phycologist had helped her, stating “[s]he got me back outside, so. I mean, it 2 terrifies me but it’s my favorite place to be, so.” Tr. 68. 3 The records the ALJ cited show that on March 19, 2013, Plaintiff reported 4 improvement in her mental health with new medications. Tr. 406. On January 7, 5 2015, Deborah S. Baldwin, Ph.D. wrote, “[s]he is no longer covering all her 6 windows, and maintaining tarps ou[t]side near her house in order to feel safe 7 enough to go into her yard (she even got her yard raked up this year. . .).” Tr. 557. 8 9 Plaintiff’s testimony to originally having tarps around her entire property and only now having plywood and tarps around her porch and garden are 10 consistent with the records cited by the ALJ. It shows that Plaintiff’s mental health 11 symptoms improved resulting in fewer barriers around her property over time. The 12 ALJ fails to state how Plaintiff’s testimony is undercut by the records she cites. 13 The ALJ fails to demonstrate how some improvement, which was admitted by 14 Plaintiff, was unsupported by the record and what bearing that had on Plaintiff’s 15 credibility. As such, this claim that Plaintiff’s allegations are unsupported by the 16 record is not specific, clear and convincing. 17 2. Actions at Hearing 18 Likewise, the ALJ concluded that Plaintiff’s ability “to speak and answer 19 questions directly and on point without hesitation at [the] hearing” was inconsistent 20 with the degree of limitation she alleged. Tr. 25-26. An ALJ may rely on her 21 observations made at a hearing. Verduzco v. Apfel, 188 F.3d 1087, 1090, (9th Cir. 22 1999). However, the ALJ failed to state how the ability to speak and answer 23 questions was inconsistent with Plaintiff’s alleged impairments. As such, this 24 reason lacks the specificity required of Lester and is in error. 25 3. Vocational Rehabilitation 26 The ALJ’s third reason for finding Plaintiff’s mental health symptom reports 27 less than fully credible, that she was involved in vocational rehabilitations, is not 28 legally sufficient. ORDER GRANTING PLAINTIFF’S MOTION . . . - 7 1 The Ninth Circuit has held that the ability to attend vocational rehabilitation 2 classes can support an adverse credibility finding when the rehabilitation 3 “indicat[es] activities in excess of the residual functional capacity.” See Marsh v. 4 Colvin, 792 F.3d 1170, 1173 n.2 (9th Cir. 2015). Here, Plaintiff testified that she 5 was in the “plan development” stage of being retrained in an area where she could 6 work from home. Tr. 69. Since Plaintiff was not yet engaged in work activities 7 through the program, it is unclear if the rehabilitation resulted in activities in 8 excess of the residual functional capacity. Therefore, this reason does not meet the 9 specific, clear and convincing standard. Considering the errors addressed above, this case is remanded for the ALJ to 10 11 make a new credibility determination. 12 B. Residual Functional Capacity 13 Plaintiff challenges the ALJ’s residual functional capacity assessment 14 arguing that the ALJ’s assessment is not supported by substantial evidence. ECF 15 No. 12 at 11-18. 16 A claimant’s residual functional capacity is the “maximum degree to which 17 the individual retains the capacity for sustained performance of the physical-mental 18 requirements of jobs.” 20 C.F.R. Part 404, Subpart P, Appendix 2, § 200.00(c). In 19 formulating a residual functional capacity, the ALJ weighs medical and other 20 source opinions and also considers the claimant’s credibility and ability to perform 21 daily activities. See, e.g., Bray v. Comm'r, Soc. Sec. Admin., 554 F.3d 1219, 1226 22 (9th Cir. 2009). 23 24 In this case, the ALJ found Plaintiff had the following residual functional capacity: 25 26 27 28 she could not climb ladders, ropes, or scaffolds, could only frequently balance, could only occasionally perform all other postural activities; could only frequently use foot controls bilaterally; could have no concentrated exposure to extreme cold, vibration, and pulmonary ORDER GRANTING PLAINTIFF’S MOTION . . . - 8 3 irritants; could have no exposure to hazards, including unprotected heights and moving mechanical parts; could perform only simple, routine, repetitive tasks; and could have only superficial contact with co-workers, supervisors, and the public. 4 Tr. 18. Then from May 21, 2014 through the date of the decision, the ALJ 5 found Plaintiff had a “slightly different,” residual functional capacity “reflecting 6 improvement in her physical condition, but deterioration in her mental health.” Id. 7 Specifically, the ALJ found she could perform a range of light work, with the 8 nonexertional limitations from the above residual functional capacity plus “she 9 could have no interaction with the public.” Id. 1 2 10 Plaintiff asserts that substantial evidence does not support the ALJ’s 11 conclusion that Plaintiff’s mental health deteriorated and her physical health 12 improved on May 21, 2014. ECF No. 12 at 12. The record contains no treatment 13 notes dated May 21, 2014. Also, there is no indication that any substantial change 14 occurred for Plaintiff on May 21, 2014. The mental health treatment records 15 acknowledged a worsening of mental health symptoms and an improvement in 16 physical symptoms around that time, but nothing specific to May 21, 2014. At the 17 end of April 2014, Dr. Baldwin observed that Plaintiff was able to walk without 18 the assistance of a cane and again had erected tarps around her property for 19 protection. Tr. 574. On May 13, 2014 Plaintiff again discussed her reliance on 20 tarps shielding her as a precursor to going outside. Tr. 570. On May 20, 2014, 21 Plaintiff reported that she was unable to spend any time outside without the 22 protection provided by the tarps around her property. Tr. 570-571. However, by 23 June 3, 2014, Plaintiff reported some improvement in mental health impairments, 24 including being able to walk around her property without the cover of tarps. Tr. 25 571. 26 While there may be evidence to support a shift in severity of Plaintiff’s 27 mental and physical impairments in late April and May of 2014, the ALJ failed to 28 point to any evidence that supported a finding that a substantial change occurred ORDER GRANTING PLAINTIFF’S MOTION . . . - 9 1 specifically on May 21, 2014 and was sustained to the date of the decision. While 2 an ALJ is allowed to make inferences as to a Plaintiff’s onset date, there must be a 3 basis for the date in medical evidence. S.S.R. 83-20. 1 Here there is no medical 4 evidence to support the specific date. As such, substantial evidence does not 5 support the ALJ’s determination. 6 REMEDY 7 The decision whether to remand for further proceedings or reverse and 8 award benefits is within the discretion of the district court. McAllister v. Sullivan, 9 888 F.2d 599, 603 (9th Cir. 1989). An immediate award of benefits is appropriate 10 where “no useful purpose would be served by further administrative proceedings, 11 or where the record has been thoroughly developed,” Varney v. Secretary of Health 12 & Human Servs., 859 F.2d 1396, 1399 (9th Cir. 1988), or when the delay caused 13 by remand would be “unduly burdensome,” Terry v. Sullivan, 903 F.2d 1273, 1280 14 (9th Cir. 1990); see also Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014) 15 (noting that a district court may abuse its discretion not to remand for benefits 16 when all of these conditions are met). This policy is based on the “need to 17 expedite disability claims.” Varney, 859 F.2d at 1401. But where there are 18 outstanding issues that must be resolved before a determination can be made, and it 19 is not clear from the record that the ALJ would be required to find a claimant 20 disabled if all the evidence were properly evaluated, remand is appropriate. See 21 Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 211 22 F.3d 1172, 1179-80 (9th Cir. 2000). 23 In this case, it is not clear from the record that the ALJ would be required to 24 find Plaintiff disabled if all the evidence were properly evaluated. Further 25 proceedings are necessary for the ALJ to determine Plaintiff’s credibility regarding 26 27 28 1 While May 21, 2014 is not the onset date, it is the date the residual functional capacity changes, therefore it is analogous to an onset date. ORDER GRANTING PLAINTIFF’S MOTION . . . - 10 1 her symptom reporting and to form a new residual functional capacity 2 determination supported by substantial evidence. The ALJ will also need to 3 supplement the record with any outstanding medical evidence and take testimony 4 from a psychological expert and a vocational expert. CONCLUSION 5 6 Accordingly, IT IS ORDERED: 7 1. 8 9 Defendant’s Motion for Summary Judgment, ECF No. 13, is DENIED. 2. Plaintiff’s Motion for Summary Judgment, ECF No. 12, is 10 GRANTED, and the matter is REMANDED to the Commissioner for additional 11 proceedings consistent with this Order. 12 3. Application for attorney fees may be filed by separate motion. 13 The District Court Executive is directed to file this Order and provide a copy 14 to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff 15 and the file shall be CLOSED. 16 DATED August 23, 2017. 17 18 19 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION . . . - 11

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