Boles v. Colvin, No. 4:2015cv05112 - Document 22 (E.D. Wash. 2016)

Court Description: ORDER Granting Plaintiff's 12 Motion for Summary Judgment. Signed by Magistrate Judge John T. Rodgers. (MO, Courtroom Deputy)

Download PDF

Boles v. Colvin Doc. 22 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 1 Nov 29, 2016 2 SEAN F. MCAVOY, CLERK 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON 6 7 8 AMANDA BOLES, No. 4:15-CV-05112-JTR Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 9 10 11 12 13 v. CAROLYN W. COLVIN, Commissioner of Social Security, Defendant. 14 15 BEFORE THE COURT are cross-Motions for Summary Judgment. ECF 16 No. 12, 16. Attorney Cory J. Brandt represents Amanda Sue Boles (Plaintiff); 17 Special Assistant United States Attorney Daphne Banay represents the 18 Commissioner of Social Security (Defendant). The parties have consented to 19 proceed before a magistrate judge. ECF No. 21. After reviewing the 20 administrative record and the briefs filed by the parties, the Court GRANTS, in 21 part, Plaintiff’s Motion for Summary Judgment; DENIES Defendant’s Motion for 22 Summary Judgment; and REMANDS the matter to the Commissioner for 23 additional proceedings pursuant to 42 U.S.C. § 405(g). 24 JURISDICTION 25 Plaintiff filed applications for Supplemental Security Income (SSI) and 26 Disability Insurance Benefits (DIB) on November 30, 2011, Tr. 238, alleging 27 disability since July 13, 2009, Tr. 197-203, due to severe back and sacral injuries 28 and colitis, Tr. 242. The applications were denied initially and upon ORDER GRANTING PLAINTIFF’S MOTION . . . - 1 Dockets.Justia.com 1 reconsideration. Tr. 130-139, 141-147. Administrative Law Judge (ALJ) Moira 2 Ausems held a hearing on April 11, 2014, and heard testimony from Plaintiff, 3 witness Mary Boles, and vocational expert Daniel McKinney. Tr. 29-79. The ALJ 4 issued an unfavorable decision on August 20, 2014. Tr. 13-23. The Appeals 5 Council denied review on October 6, 2015. Tr. 1-6. The ALJ’s August 20, 2014, 6 decision became the final decision of the Commissioner, which is appealable to the 7 district court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action for judicial 8 review on November 12, 2015. ECF No. 1, 3. STATEMENT OF FACTS 9 The facts of the case are set forth in the administrative hearing transcript, the 10 11 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 12 here. 13 Plaintiff was 37 years old at the alleged date of onset. Tr. 197. Plaintiff 14 completed the twelfth grade in 1990. Tr. 243. She received training as an 15 emergency medical technician and I.V. technician. Tr. 36-37. Her work history 16 includes the jobs of bug trapper, greenhouse assistant, landscaping assistant, parts 17 runner, volunteer firefighter,1 emergency medical technician, floral arranger, and 18 delivery driver. Tr. 37-39, 243. Plaintiff reported her job prior to applying for 19 benefits was as a firefighter and emergency medical technician and that she 20 stopped working because of her condition. Tr. 36-37, 242-243. STANDARD OF REVIEW 21 22 The ALJ is responsible for determining credibility, resolving conflicts in 23 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 24 1039 (9th Cir. 1995). The Court reviews the ALJ’s determinations of law de novo, 25 deferring to a reasonable interpretation of the statutes. McNatt v. Apfel, 201 F.3d 26 27 28 1 While the term volunteer would indicate that Plaintiff performed the duties without pay, she stated she was paid at the rate of $10.00 per hour. ORDER GRANTING PLAINTIFF’S MOTION . . . - 2 1 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is 2 not supported by substantial evidence or if it is based on legal error. Tackett v. 3 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as 4 being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put 5 another way, substantial evidence is such relevant evidence as a reasonable mind 6 might accept as adequate to support a conclusion. Richardson v. Perales, 402 7 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational 8 interpretation, the court may not substitute its judgment for that of the ALJ. 9 Tackett, 180 F.3d at 1097. Nevertheless, a decision supported by substantial 10 evidence will be set aside if the proper legal standards were not applied in 11 weighing the evidence and making the decision. Brawner v. Secretary of Health 12 and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). If substantial evidence 13 supports the administrative findings, or if conflicting evidence supports a finding 14 of either disability or non-disability, the ALJ’s determination is conclusive. 15 Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). 16 17 SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process 18 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 19 416.920(a); see Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one 20 through four, the burden of proof rests upon the claimant to establish a prima facie 21 case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-1099. This 22 burden is met once the claimant establishes that physical or mental impairments 23 prevent her from engaging in her previous occupations. 20 C.F.R. §§ 24 404.1520(a)(4), 416.920(a)(4). If the claimant cannot do her past relevant work, 25 the ALJ proceeds to step five, and the burden shifts to the Commissioner to show 26 that (1) the claimant can make an adjustment to other work, and (2) specific jobs 27 exist in the national economy which the claimant can perform. Batson v. Comm’r 28 of Soc. Sec. Admin., 359 F.3d 1190, 1193-1194 (2004). If the claimant cannot ORDER GRANTING PLAINTIFF’S MOTION . . . - 3 1 make an adjustment to other work in the national economy, a finding of “disabled” 2 is made. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 3 ADMINISTRATIVE DECISION 4 On August 20, 2014, the ALJ issued a decision finding Plaintiff was not 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 July 13, 2009, the alleged onset date. Tr. 15. 8 At step two, the ALJ determined Plaintiff had the following severe 9 impairments: fibromyalgia, mild lumbar degenerative changes, and obesity. Tr. 10 15-16. 11 At step three, the ALJ found Plaintiff did not have an impairment or 12 combination of impairments that met or medically equaled the severity of one of 13 the listed impairments. Tr. 16. 14 At step four, the ALJ assessed Plaintiff’s residual function capacity and 15 determined she could perform a range of light work with the following limitations: 16 [S]he could stand and/or walk no more than two hours in an eight-hour period; she would benefit from a sit/stand option a couple of times each hour but would not need to leave the work station; she could occasionally balance, stoop, kneel, crouch, crawl, and climb ramps or stairs, but could never climb ladders, ropes, or scaffolds; she should avoid concentrated exposure to extreme cold; she should avoid all exposure to unprotected heights, dangerous machinery, and commercial driving; and she would be limited to semi-skilled tasks and occasional contact with the general public due only to the effects of pain. 17 18 19 20 21 22 23 24 Tr. 17. The ALJ identified Plaintiff’s past relevant work as sample gatherer, 25 horticultural worker, landscape laborer, parts driver, firefighter, and emergency 26 medical technician and concluded that Plaintiff was not able to perform her past 27 relevant work. Tr. 21. 28 At step five, the ALJ determined that, considering Plaintiff’s age, education, ORDER GRANTING PLAINTIFF’S MOTION . . . - 4 1 work experience and residual functional capacity, and based on the testimony of 2 the vocational expert, there were other jobs that exist in significant numbers in the 3 national economy Plaintiff could perform, including the jobs of small products 4 assembler II, weld inspector, and inspector/packer. Tr. 22. The ALJ concluded 5 that Plaintiff was not under a disability within the meaning of the Social Security 6 Act at any time from the alleged onset date, July 13, 2009, through the ALJ’s 7 decision, August 20, 2014. Tr. 23. ISSUES 8 The question presented is whether substantial evidence supports the ALJ’s 9 10 decision denying benefits and, if so, whether that decision is based on proper legal 11 standards. Plaintiff contends that the ALJ erred by (1) failing to properly weigh 12 the medical opinions; (2) failing to properly consider Plaintiff’s testimony about 13 the severity of her symptoms, and (3) failing to meet her burden at step five. DISCUSSION 14 15 16 17 A. Medical Opinions Plaintiff challenges the weight given to the opinions of Wing C. Chau, M.D. and James C. Fulper, M.D. ECF No. 12 at 7-10. 18 In weighing medical source opinions, the ALJ should distinguish between 19 three different types of physicians: (1) treating physicians, who actually treat the 20 claimant; (2) examining physicians, who examine but do not treat the claimant; 21 and, (3) nonexamining physicians who neither treat nor examine the claimant. 22 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). The ALJ should give more 23 weight to the opinion of a treating physician than to the opinion of an examining 24 physician. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). Likewise, the ALJ 25 should give more weight to the opinion of an examining physician than to the 26 opinion of a nonexamining physician. Id. 27 28 When a treating physician’s opinion is not contradicted by another physician, the ALJ may reject the opinion only for “clear and convincing” reasons. ORDER GRANTING PLAINTIFF’S MOTION . . . - 5 1 Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). When a treating 2 physician’s opinion is contradicted by another physician, the ALJ is only required 3 to provide “specific and legitimate reasons” for rejecting the opinion. Murray v. 4 Heckler, 722 F.2d 499, 502 (9th Cir. 1983). Likewise, when an examining 5 physician’s opinion is not contradicted by another physician, the ALJ may reject 6 the opinion only for “clear and convincing” reasons, and when an examining 7 physician’s opinion is contradicted by another physician, the ALJ is only required 8 to provide “specific and legitimate reasons” to reject the opinion. Lester, 81 F.2d 9 at 830-831. 10 The specific and legitimate standard can be met by the ALJ setting out a 11 detailed and thorough summary of the facts and conflicting clinical evidence, 12 stating her interpretation thereof, and making findings. Magallanes v. Bowen, 881 13 F.2d 747, 751 (9th Cir. 1989). The ALJ is required to do more than offer her 14 conclusions, she “must set forth [her] interpretations and explain why they, rather 15 than the doctors’, are correct.” Embrey v. Bowen, 849 F.2d 418, 421-422 (9th Cir. 16 1988). 17 1. Wing C. Chau, M.D. 18 On July 20, 2012, Dr. Chau completed a consultative examination. Tr. 386- 19 388. He diagnosed Plaintiff with lumbar spondylosis, fibromyalgia, and obesity. 20 Tr. 388. He opined that Plaintiff “is felt to be capable of full time work at a 21 sedentary level. She is probabl[y] restricted to office setting with ability to sit, 22 stand, and ambulate as needed. She is capable of occasional carrying and lifting to 23 [twenty pounds].” Tr. 388. 24 On May 20, 2014, Dr. Chau completed a second consultative examination. 25 Tr. 448-450. Again, he diagnosed Plaintiff with lumbar spondylosis, fibromyalgia, 26 and obesity. Tr. 450. He stated that “I don’t believe much has changed. She is 27 still without focal neurological deficit. . . . She is still felt to be capable of 28 sedentary work full time.” Id. He also completed a Medical Source Statement ORDER GRANTING PLAINTIFF’S MOTION . . . - 6 1 form indicating that Plaintiff could frequently lift and carry up to ten pounds, 2 occasionally lift eleven to twenty pounds, sit for thirty minutes at a time for a 3 maximum of six hours, stand and walk fifteen minutes at a time for a maximum of 4 two hours, occasionally reach overhead and push/pull, frequently reach in all other 5 directions, handle, finger, and feel, occasionally operate foot controls, never climb 6 ladders or scaffolds, stoop, kneel, crouch, or crawl, occasionally climb stairs and 7 ramps, and frequently balance. Tr. 452-454. Additionally, he limited all of 8 Plaintiff’s environmental exposures to frequent. Tr. 455. He stated the above 9 limitations were first present as of July 20, 2012. Tr. 456. 10 The ALJ gave both opinions great weight. Tr. 19-20. However, the ALJ 11 discounted the manipulative, postural, and environmental restrictions given in Dr. 12 Chau’s May 20, 2014, Medical Source Statement, stating she did “not find that the 13 restrictions he assessed [were] consistent with the medical evidence as a whole or 14 his objective reports.” Tr. 20. The ALJ failed to address how these manipulative, 15 postural, and environmental restrictions were inconsistent with the medical 16 evidence or Dr. Chau’s objective reports. The ALJ is required to do more than 17 offer her conclusions, she “must set forth [her] interpretations and explain why 18 they, rather than the doctors’, are correct.” Embrey, 849 F.2d at 421-422. 19 Therefore, the ALJ’s reason fails to meet the specific and legitimate standard and 20 the case is remanded for the ALJ to readdress Dr. Chau’s opinion and provide 21 legally sufficient rationale should she choose to reject any portion of his opinions. 22 2. James C. Fulper, M.D. 23 Dr. Fulper treated Plaintiff from July 21, 2009, through April 8, 2013. Tr. 24 399-427. From July 21, 2009, to September 22, 2009, Dr. Fulper precluded 25 Plaintiff from working. Tr. 420-427. From October 14, 2009, to January 12, 26 2010, Dr. Fulper limited Plaintiff to lifting ten pounds. Tr. 414-419. From January 27 26, 2010, to May 5, 2010, Dr. Fulper again precluded Plaintiff from working. Tr. 28 409-413. On May 17, 2010, Plaintiff requested that she be released to work again ORDER GRANTING PLAINTIFF’S MOTION . . . - 7 1 as a volunteer fire fighter, stating she felt fine. Tr. 407. On December 31, 2012, 2 Dr. Fulper stated “no prolonged standing.” Tr. 405. On January 14, 2013, he 3 limited her prolonged standing and walking. Tr. 404. The ALJ considered Dr. Fulper’s work restriction from January through May 4 5 of 2010, but gave the opinion “little weight” because it was not supported by 6 objective evidence, it only lasted four months, and Plaintiff requested a work 7 release in May of 2010. Tr. 18. The ALJ did not discuss the work preclusion from 8 July 2009 through September 2009, the ten pound lifting restriction from October 9 2009 through January 2009, or the limited standing recommendations from 10 December 2012 to January 2013. The ALJ is required to explain why “significant probative evidence has been 11 12 rejected.” Vincent v. Heckler, 739 F.2d 1393, 1394-1395, (9th Cir. 1984). 13 Defendant acknowledged that the ALJ erred by failing to address the 2009 14 opinions of Dr. Fulper, but argued that the error was harmless because it was 15 inconsequential to the ultimate determination. ECF No. 16 at 7. However, this 16 case is being remanded for the ALJ to readdress the opinion of Dr. Chau. 17 Therefore, the ALJ is to fully consider all of Dr. Fulper’s opinions on remand. 18 B. Plaintiff contests the ALJ’s adverse credibility determination in this case. 19 20 Claimant’s Subjective Statements ECF No. 12 at 10-14. The evaluation of a claimant’s statements regarding limitations relies, in 21 22 part, on the assessment of the medical evidence. See 20 C.F.R. §§ 404.1529(c), 23 416.929(c); S.S.R. 16-3p. Therefore, in light of the case being remanded for the 24 ALJ to address the medical source opinions of Dr. Chau and Dr. Fulper, a new 25 assessment of Plaintiff’s subjective symptom statements is necessary in accord 26 with S.S.R. 16-3p. 27 C. 28 Step Five Plaintiff argues the ALJ failed to meet her step five burden because the ORDER GRANTING PLAINTIFF’S MOTION . . . - 8 1 hypothetical given to the vocational expert lacked limitations addressed by Dr. 2 Chau and Dr. Fulper. ECF No. 12 at 14-15. 3 At step five, the Commissioner has the burden to show that (1) the claimant 4 can make an adjustment to other work, and (2) specific jobs exist in the national 5 economy which the claimant can perform. Batson, 359 F.3d at 1193-1194. If the 6 limitations are nonexertional and not covered by the grids, a vocational expert is 7 required to identify if jobs match the abilities of the claimant, given her limitations. 8 Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995). 9 Because the case is being remanded for the ALJ to properly address the 10 medical source opinions, it will also be necessary to make a new residual 11 functional capacity determination, thus, affecting both the step four and step five 12 determinations on remand. A vocational expert will need to be available to testify 13 at any supplemental proceedings considering the limitations at issue are the 14 nonexertional limitations from Dr. Chau’s opinion. 15 REMEDY 16 The decision whether to remand for further proceedings or reverse and 17 award benefits is within the discretion of the district court. McAllister v. Sullivan, 18 888 F.2d 599, 603 (9th Cir. 1989). An immediate award of benefits is appropriate 19 where “no useful purpose would be served by further administrative proceedings, 20 or where the record has been thoroughly developed,” Varney v. Secretary of Health 21 & Human Servs., 859 F.2d 1396, 1399 (9th Cir. 1988), or when the delay caused 22 by remand would be “unduly burdensome,” Terry v. Sullivan, 903 F.2d 1273, 1280 23 (9th Cir. 1990). See also Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014) 24 (noting that a district court may abuse its discretion not to remand for benefits 25 when all of these conditions are met). This policy is based on the “need to 26 expedite disability claims.” Varney, 859 F.2d at 1401. But where there are 27 outstanding issues that must be resolved before a determination can be made, and it 28 is not clear from the record that the ALJ would be required to find a claimant ORDER GRANTING PLAINTIFF’S MOTION . . . - 9 1 disabled if all the evidence were properly evaluated, remand is appropriate. See 2 Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 211 3 F.3d 1172, 1179-80 (9th Cir. 2000). 4 In this case, it is not clear from the record that the ALJ would be required to 5 find Plaintiff disabled if all the evidence were properly evaluated. Further 6 proceedings are necessary for the ALJ to properly address the opinions of Dr. Chau 7 and Dr. Fulper, evaluate Plaintiff’s symptom statements under S.S.R. 16-3p, and 8 make a new residual functional capacity determination. The Court takes notice 9 that the ALJ had originally intended to call a medical expert in this claim, but that 10 the specific expert scheduled to testify had a conflict of interest and could not 11 proceed at the hearing. Tr. 13, 32. Considering this, the ALJ will call a medical 12 expert, who does not have a conflict of interest, and a vocational expert to testify at 13 a supplemental hearing. CONCLUSION 14 15 Accordingly, IT IS ORDERED: 16 1. 17 18 Defendant’s Motion for Summary Judgment, ECF No. 16, is DENIED. 2. Plaintiff’s Motion for Summary Judgment, ECF No. 12, GRANTED, 19 in part, and the matter is REMANDED to the Commissioner for additional 20 proceedings consistent with this Order. 21 3. Application for attorney fees may be filed by separate motion. 22 The District Court Executive is directed to file this Order and provide a copy 23 to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff 24 and the file shall be CLOSED. 25 DATED November 29, 2016. 26 27 28 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE ORDER GRANTING PLAINTIFF’S MOTION . . . - 10

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.