Sanders v. Commissioner of Social Security, No. 1:2016cv03057 - Document 26 (E.D. Wash. 2017)
Court Description: ORDER granting in part and denying in part ECF No. 18 Plaintiff's Motion for Summary Judgment; denying ECF No. 23 Defendant's Motion for Summary Judgment. The matter is REMANDED to the Commissioner for additional proceedings. FILE CLOSED. Signed by Magistrate Judge John T. Rodgers. (TR, Case Administrator)
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1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON 6 7 8 TERRINA SANDERS, Plaintiff, 9 v. 10 11 12 13 COMMISSIONER OF SOCIAL SECURITY, No. 1:16-CV-3057-JTR ORDER GRANTING, IN PART, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR ADDITIONAL PROCEEDINGS Defendant. 14 15 BEFORE THE COURT are cross-motions for summary judgment. ECF 16 No. 18, 23. Attorney D. James Tree represents Terrina Sanders (Plaintiff); Special 17 Assistant United States Attorney Franco L. Becia represents the Commissioner of 18 Social Security (Defendant). The parties have consented to proceed before a 19 magistrate judge. ECF No. 7. After reviewing the administrative record and the 20 briefs filed by the parties, the Court GRANTS, in part, Plaintiff’s Motion for 21 Summary Judgment; DENIES Defendant’s Motion for Summary Judgment; and 22 REMANDS the matter to the Commissioner for additional proceedings pursuant to 23 42 U.S.C. § 405(g). 24 25 JURISDICTION Plaintiff filed applications for Disability Insurance Benefits and 26 Supplemental Security Income on July 20, 2012, alleging disability since February 27 20, 2012, due to fibromyalgia, insomnia, anxiety and depression. Tr. 247. The 28 applications were denied initially and upon reconsideration. Administrative Law ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 1 1 Judge (ALJ) Virginia M. Robinson held a hearing on April 2, 2014, Tr. 39-76, and 2 issued an unfavorable decision on October 31, 2014, Tr. 19-34. The Appeals 3 Council denied Plaintiff’s request for review on March 30, 2016. Tr. 1-6. The 4 ALJ’s October 2014 decision thus became the final decision of the Commissioner, 5 which is appealable to the district court pursuant to 42 U.S.C. § 405(g). Plaintiff 6 filed this action for judicial review on April 15, 2016. ECF No. 1, 4. 7 STATEMENT OF FACTS 8 Plaintiff was born on September 8, 1972, and was 39 years old on the 9 alleged onset date, July 20, 2012. Tr. 202. Plaintiff completed high school as well 10 as cosmetology school, Tr. 248, and has past relevant work as a restaurant server, 11 kitchen helper, short order cook and cosmetologist. Tr. 32. At the administrative 12 hearing, Plaintiff testified she left her job as a server at the Drift Inn after 12 years 13 because she could no longer perform the work due to pain, weakness and fatigue. 14 Tr. 45-46, 64. She stated she then attempted work as an in-home care provider but 15 had to quit after about three months because of an inability to perform the job. Tr. 16 46. Witness Greg Stevenson testified at the administrative hearing that Plaintiff 17 was his regular hairstylist, last cutting his hair a month and a half prior to the April 18 2014 hearing. Tr. 55. Plaintiff’s “Disability Report” indicates she stopped 19 working on June 1, 2012, because of her condition. Tr. 247. 20 Plaintiff testified she is in constant pain and experienced about 25 bad days 21 per month where her pain level would be at an eight to a ten on a scale of one to 22 ten. Tr. 46-47. She stated she spends approximately 80 percent of her time during 23 the day lying down or reclining. Tr. 50-51. 24 25 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 26 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 27 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 28 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 2 1 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 2 only if it is not supported by substantial evidence or if it is based on legal error. 3 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 4 defined as being more than a mere scintilla, but less than a preponderance. Id. at 5 1098. Put another way, substantial evidence is such relevant evidence as a 6 reasonable mind might accept as adequate to support a conclusion. Richardson v. 7 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one 8 rational interpretation, the Court may not substitute its judgment for that of the 9 ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 10 169 F.3d 595, 599 (9th Cir. 1999). If substantial evidence supports the 11 administrative findings, or if conflicting evidence supports a finding of either 12 disability or non-disability, the ALJ’s determination is conclusive. Sprague v. 13 Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision 14 supported by substantial evidence will be set aside if the proper legal standards 15 were not applied in weighing the evidence and making the decision. Brawner v. 16 Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 17 18 SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process 19 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 20 416.920(a); Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through 21 four, the burden of proof rests upon the claimant to establish a prima facie case of 22 entitlement to disability benefits. Tackett, 180 F.3d at 1098-1099. This burden is 23 met once a claimant establishes that a physical or mental impairment prevents her 24 from engaging in her previous occupation. 20 C.F.R. §§ 404.1520(a)(4), 25 416.920(a)(4). If a claimant cannot do her past relevant work, the ALJ proceeds to 26 step five, and the burden shifts to the Commissioner to show that (1) the claimant 27 can make an adjustment to other work; and (2) specific jobs exist in the national 28 economy which claimant can perform. Batson v. Commissioner of Social Sec. ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 3 1 Admin., 359 F.3d 1190, 1193-1194 (2004). If a claimant cannot make an 2 adjustment to other work in the national economy, a finding of “disabled” is made. 3 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 4 ADMINISTRATIVE DECISION 5 6 On October 31, 2014, the ALJ issued a decision finding Plaintiff was not disabled as defined in the Social Security Act. 7 At step one, the ALJ found Plaintiff had not engaged in substantial gainful 8 activity since July 20, 2012, the alleged onset date. Tr. 21. At step two, the ALJ 9 determined Plaintiff had the following severe impairments: fibromyalgia; 10 depression, not otherwise specified (NOS); anxiety, NOS; and chronic pain 11 syndrome with physiologic and psychological components. Tr. 22. At step three, 12 the ALJ found Plaintiff did not have an impairment or combination of impairments 13 that meets or medically equals the severity of one of the listed impairments. Tr. 14 24. 15 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and found 16 Plaintiff could perform light exertion level work, but with the following 17 limitations: she could lift and carry 20 pounds occasionally and 10 pounds 18 frequently; she could stand and/or walk for approximately six hours and sit for 19 approximately six hours in an eight-hour workday with normal breaks; she could 20 occasionally climb ramps or stairs but not climb ladders, ropes or scaffolds; she 21 could perform work that is limited to frequent balancing; she could occasionally 22 stoop, crouch or crawl and frequently handle and finger; and she could perform 23 work that is limited to simple tasks consistent with unskilled work. Tr. 25-26. 24 At step four, the ALJ found Plaintiff was unable to perform her past relevant 25 work as a restaurant server informal, kitchen helper, short order cook and 26 cosmetologist. Tr. 32. At step five, the ALJ determined that, based on the 27 testimony of the vocational expert, and considering Plaintiff’s age, education, work 28 experience and RFC, Plaintiff was capable of making a successful adjustment to ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 4 1 other work that exists in significant numbers in the national economy, including 2 the jobs of hand packager, bakery worker conveyor line, cashier II, telephone 3 information clerk, escort vehicle driver and document preparer. Tr. 32-34. The 4 ALJ thus concluded Plaintiff was not under a disability within the meaning of the 5 Social Security Act at any time from July 20, 2012, the alleged onset date, through 6 the date of the ALJ’s decision, October 31, 2014. Tr. 33-34. 7 ISSUES The question presented is whether substantial evidence supports the ALJ’s 8 9 decision denying benefits and, if so, whether that decision is based on proper legal 10 standards. Plaintiff contends the ALJ erred by (1) failing to properly consider 11 certain medical opinions regarding Plaintiff’s capabilities for work; (2) discrediting 12 Plaintiff’s symptom testimony; and (3) improperly rejecting the opinions of lay 13 witnesses. 14 15 16 17 18 DISCUSSION A. Plaintiff’s Subjective Complaints Plaintiff argues the ALJ erred by failing to provide valid reasons for rejecting her subjective complaints. ECF No. 18 at 10-13. The Court agrees. It is the province of the ALJ to make credibility determinations. Andrews, 19 53 F.3d at 1039. However, the ALJ’s findings must be supported by specific 20 cogent reasons. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent 21 affirmative evidence of malingering, the ALJ’s reasons for rejecting the claimant’s 22 testimony must be “specific, clear and convincing.” Smolen v. Chater, 80 F.3d 23 1273, 1281 (9th Cir. 1996); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). 24 “General findings are insufficient: rather the ALJ must identify what testimony is 25 not credible and what evidence undermines the claimant’s complaints.” Lester, 81 26 F.3d at 834; Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 27 28 The ALJ concluded that Plaintiff’s medically determinable impairments could reasonably be expected to cause some of the alleged symptoms; however, ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 5 1 Plaintiff’s statements concerning the intensity, persistence and limiting effects of 2 those symptoms were not entirely credible. Tr. 26. The ALJ listed the following 3 three reasons to discount Plaintiff’s credibility: (1) objective medical findings 4 were not fully consistent with the degree of alleged impairment; (2) Plaintiff was 5 noncompliant with medical advice; and (3) the record reflected inconsistent 6 statements by Plaintiff. Tr. 27-29. For the reasons discussed below, the Court 7 finds the ALJ’s rationale is not supported by substantial evidence. See infra. 8 1. Objective Medical Evidence 9 The ALJ first found that the objective medical findings were not fully 10 consistent with the degree of impairment alleged by Plaintiff. Tr. 27. A lack of 11 supporting objective medical evidence is a factor which may be considered in 12 evaluating a claimant’s credibility, provided it is not the sole factor. Bunnell v. 13 Sullivan, 347 F.2d 341, 345 (9th Cir. 1991). 14 Here, the ALJ did not articulate how Plaintiff’s pain complaints specifically 15 conflicted with the objective medical findings of record. See Lester, 81 F.3d at 16 834. Instead, the ALJ merely outlined the medical reports of Mark Bauer, M.D., 17 and Alan Greenwald, M.D., which primarily document Plaintiff’s pain complaints 18 and medication regimen. Tr. 27. In any event, as described below, even if this 19 factor was supported by substantial evidence, it would impermissibly be the sole 20 valid reason for finding Plaintiff less than fully credible in this case. See Bunnell, 21 347 F.2d at 345. 22 2. 23 The ALJ next determined the evidence of record reflected Plaintiff was 24 noncompliant with medical advice to (1) avoid or reduce narcotics for fibromyalgia 25 pain, (2) complete physical or pool therapy, and (3) quit smoking cigarettes. Tr. 26 27-28. 27 28 Non-Compliance with Medical Advice Noncompliance with medical care or unexplained or inadequately explained reasons for failing to seek medical treatment can cast doubt on a claimant’s ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 6 1 subjective complaints. 20 C.F.R. §§ 404.1530, 426.930; Fair v. Bowen, 885 F.2d 2 597, 603 (9th Cir. 1989). 3 Here, the ALJ first evinced the report of Henry Kim, M.D, that Plaintiff 4 failed to begin physical or pool therapy as recommended. Tr. 27. While it is true 5 Plaintiff did not start recommended physical/pool therapy, Plaintiff indicated, and 6 the ALJ acknowledged, Tr. 27, that Plaintiff reported she did not commence the 7 therapy because she did not receive phone calls to set up the therapy sessions on 8 two separate occasions, Tr. 421, 432. 9 The ALJ also noted Plaintiff failed to follow physician advice to avoid or 10 reduce narcotics for her fibromyalgia pain. Tr. 27. However, as indicated by 11 Plaintiff, ECF No. 18 at 13, at the locations in the record cited by the ALJ, Dr. Kim 12 merely noted he “would not generally recommend chronic opioid therapy for 13 fibromyalgia type pain,” with no mention of a plan to taper Plaintiff off of 14 narcotics, Tr. 331, 437; Dr. Greenwald stated only that he “would have her avoid 15 narcotics” without suggesting a method of tapering, Tr. 386; and, while Dr. Bauer 16 referenced discussing the reduction of Plaintiff’s use of hydrocodone in January 17 2014, Tr. 400-401, it appears that reduction was accomplished by April 2014, see 18 Tr. 486 (“Not-Taking/PRN Hydrocodone-Acetaminophen”). 19 Finally, the ALJ noted Plaintiff’s failure to reduce her one-pack per day 20 consumption of cigarettes despite her doctors’ recommendations to stop smoking. 21 Tr. 27. The Court finds a claimant’s failure to comply with a diagnosis to quit 22 smoking is an unreliable basis on which to rest a credibility determination. See e.g. 23 Shramek v. Apfel, 226 F.3d 809, 813 (7th Cir. 2000) (“Given the addictive nature 24 of smoking, the failure to quit is as likely attributable to factors unrelated to the 25 effect of smoking on a person’s health.”). Even though Plaintiff’s smoking may 26 have contributed to her symptoms, the fact that she did not quit as recommended 27 by her doctors does not undermine her credibility. The failure to quit smoking is 28 not a clear and convincing reason to discount Plaintiff’s credibility. ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 7 1 3. 2 The ALJ also noted alleged inconsistencies between the evidence of record 3 4 Inconsistencies and Plaintiff’s statements. Tr. 28-29. In determining credibility, an ALJ may engage in ordinary techniques of 5 credibility evaluation, such as considering claimant’s reputation for truthfulness 6 and inconsistencies in claimant’s testimony. Burch v. Barnhart, 400 F.3d 676, 680 7 (9th Cir. 2005); Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). When 8 a claimant fails to be a reliable historian, “this lack of candor carries over” to other 9 portions of his or her testimony. Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 10 11 2002). The ALJ devoted a significant portion of her credibility analysis to 12 challenging Plaintiff’s allegedly inconsistent statements regarding her weight gain 13 or loss. Tr. 28. However, as argued by Plaintiff, ECF No. 18 at 14, regardless of 14 whether Plaintiff was entirely accurate on the exact amount of weight she gained or 15 lost between October 2011 and December 2014, the record reflects her weight 16 certainly varied during this timeframe. The Court finds any minor discrepancy by 17 Plaintiff in estimating her weight loss or gain is not a specific, clear and convincing 18 reason to discount her credibility. 19 The ALJ next cites Plaintiff’s reported activities throughout the record as 20 inconsistent with her testimony that she spends eighty percent of her day lying 21 down or reclining. Tr. 28-29. The ALJ indicated Plaintiff’s reports that she was 22 able to care for her son, cook, clean, water plants, wash laundry and dishes, help 23 her sons with homework, go outside, drive a car, go grocery shopping, pay bills, 24 take her sons to sporting practices, and attend her sons’ games were inconsistent 25 with her testimony. Tr. 28-29. The Ninth Circuit has held that one does not need 26 to be “utterly incapacitated” to be disabled. Fair, 885 F.2d at 603 (“claimant’s 27 ability to engage in activities that were sporadic and punctuated with rest, such as 28 housework, occasional weekend trips, and some exercise, do not support a finding ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 8 1 that he can engage in regular work activities”). In any event, Plaintiff specifically 2 testified she is barely able to do the small things that need to be done: making sure 3 her sons are taken care of, attend school, do homework and eat appropriately. Tr. 4 50. She stated she will mostly lie down or recline during the day, but will attempt 5 “to get up and get small things done, laundry and dishes, just a little bit here and 6 there.” Tr. 50. Plaintiff indicated that with respect to household chores, she will 7 often need to sit down and rest before finishing what she started. Tr. 50-51. She 8 also stated she liked to watch her son practice and play sports, but no longer 9 attended practices and would also miss some of his games. Tr. 49. The Court 10 finds Plaintiff’s hearing testimony does not conflict with the list of activities 11 identified by the ALJ. 12 The ALJ next indicated Plaintiff’s report to the SSA that she has great 13 difficulty with sleep and cannot get to sleep without medication was contradicted 14 by her sleep study which showed she was asleep within eighteen minutes of 15 starting the study. Tr. 29. However, the report specifies that Plaintiff was in fact 16 premedicated for the sleep study, and the results of the sleep study revealed 17 unspecified sleep disturbance and chronic insomnia. Tr. 489-490. Accordingly, 18 contrary to the ALJ’s determination, Plaintiff’s report to the SSA of sleep 19 difficulties and inability to get to sleep without medication was not contradicted by 20 the results of the sleep study. This was not a specific, clear and convincing reason 21 to discount her credibility. 22 Finally, the ALJ noted Plaintiff reported to a heart specialist in November 23 2013 that her Holter monitor test results showed an “average heart rate” of 96 to 24 117, but the actual test results showed an average heart rate of 87. Tr. 29. Plaintiff 25 informed Dr. Bauer in November 2013 that she had previously had a Holter 26 monitor test “which was normal except for that she has an average heart rate from 27 96 to 117.” Tr. 334. While the August 2012 Holter test results revealed an actual 28 average heart rate of 87, the report reflects the lowest rate was 60, the maximum ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 9 1 rate was 129, and Plaintiff’s complaints of “felt heart pounding” were associated 2 with rates of 91 to 97. Tr. 314. At most, Plaintiff’s report to Dr. Bauer is a minor 3 discrepancy. It is not a clear and convincing reason to discredit Plaintiff. 4 The ALJ is responsible for reviewing the evidence and resolving conflicts or 5 ambiguities in testimony. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 6 1989). This Court has a limited role in determining whether the ALJ’s decision is 7 supported by substantial evidence and may not substitute its own judgment for that 8 of the ALJ even if it might justifiably have reached a different result upon de novo 9 review. 42 U.S.C. § 405(g). It is the role of the trier of fact, not this Court, to 10 resolve conflicts in evidence. Richardson, 402 U.S. at 400. However, based on 11 the foregoing, the Court concludes that the rationale provided by the ALJ for 12 discrediting Plaintiff is not clear and convincing. The Court thus finds a remand 13 for a proper determination regarding Plaintiff’s alleged symptoms is necessary in 14 this case.1 15 B. Lay Witnesses 16 Plaintiff contends the ALJ further erred by improperly rejecting the lay 17 witness testimony of Greg Stevenson, Plaintiff’s former customer and current 18 friend; Kim Stewart, Plaintiff’s former co-worker and current friend; and Judy 19 Schuster, Plaintiff’s mother, Tr. 51-61. ECF No. 18 at 16-18. 20 21 The ALJ shall “consider observations by non-medical sources as to how an impairment affects a claimant’s ability to work.” Sprague v. Bowen, 812 F.2d 22 23 1 On March 16, 2016, S.S.R. 16-3p became effective, eliminating the term 24 “credibility” from the Social Security Administration’s policy, and clarifying 25 “adjudicators will not assess an individual’s overall character or truthfulness.” 26 S.S.R. 16-3p, 2016 WL 1119029 at *1, 10. Accordingly, on remand, the ALJ 27 should address S.S.R. 16-3p as part of the review regarding Plaintiff’s alleged 28 symptoms. ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 10 1 1226, 1232 (9th Cir. 1987), citing 20 C.F.R. § 404.1513(e)(2). “Descriptions by 2 friends and family members in a position to observe a claimant’s symptoms and 3 daily activities have routinely been treated as competent evidence.” Sprague, 812 4 F.2d at 1232. The ALJ may not ignore or improperly reject the probative 5 testimony of a lay witness without giving reasons that are germane to each witness. 6 Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993). 7 The ALJ indicated that all three lay witnesses appeared motivated by a 8 sincere desire to help Plaintiff. Tr. 31. An ALJ may consider a lay witness’s 9 “close relationship” with a claimant, and a possibility that the lay witness is 10 “influenced by her desire to help.” Greger v. Barnhart, 464 F.3d 968, 972 (9th 11 Cir. 2006). The ALJ then found that the lay witnesses’ testimony was not fully 12 consistent with Plaintiff’s actual functioning and was based, at least in part, on 13 Plaintiff’s non-credible self-reported symptoms and limitations. Tr. 31; Bayliss v. 14 Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) (citing Lewis v. Apfel, 236 F.3d 15 503, 511 (9th Cir. 2001) (inconsistency with medical evidence is a germane reason 16 for rejecting the testimony of a lay witness). The ALJ also determined Ms. 17 Shuster’s testimony that Plaintiff was unable to clean her house conflicted with 18 Plaintiff’s reported ability to perform household duties. Tr. 31. The ALJ’s notation that the three lay witnesses appeared motived to help 19 20 Plaintiff was not asserted by the ALJ as a reason to reject their testimony, but 21 rather as support for the conclusion that their testimony was “consistent with 22 Plaintiff’s subjective pain complaints” and supported the assertion that “Plaintiff 23 has a reputation of being a good worker.” Tr. 31. This portion of the ALJ’s 24 decision discussed the positive aspects of the lay witnesses’ testimony. Then, the 25 ALJ began an entirely separate paragraph with stated reasons to reject the 26 testimony of the lay witnesses. 27 /// 28 /// ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 11 1 With regard to the ALJ’s rationale to discredit the testimony of the lay 2 witnesses, the ALJ does not specify how their testimony differs from any particular 3 medical record of Plaintiff’s “actual functioning.” Tr. 31. Moreover, because the 4 ALJ’s determination that Plaintiff is not entirely credible is not supported by 5 substantial evidence, as discussed in Section A above, the stated reason to discredit 6 the lay witnesses’ opinions because they are based in part on Plaintiff’s self-reports 7 is not valid. With the exception of the accurately noted contrast between Ms. 8 Shuster’s testimony and Plaintiff’s reported ability to maintain her house, the Court 9 finds the rationale provided by the ALJ for accordingly little weight to the 10 testimony of the lay witnesses is insufficient. On remand, the ALJ shall reconsider 11 the testimony of Greg Stevenson, Kim Stewart, and Judy Schuster when assessing 12 the evidence of record. 13 C. 14 Medical Evidence Plaintiff additionally contends the ALJ erred by failing to properly consider 15 the medical opinions of Michelle Zipperman, Ph.D., and Leslie Schneider, Ph.D, 16 and instead giving weight to reviewing medical professionals of record. ECF No. 17 18 at 6-12. 18 1. Michelle Zipperman, Ph.D. 19 The ALJ accorded Dr. Zipperman’s report “great weight,” finding her 20 opinions demonstrated Plaintiff was able to complete a normal workday or 21 workweek and deal with the usual stress encountered in the workplace without 22 excessive interruptions from a psychiatric condition. Tr. 30. However, a review of 23 Dr. Zipperman’s report reveals she found Plaintiff’s abilities to perform simple, 24 repetitive tasks; maintain attention and concentration; accept instructions from 25 supervisors; interact with coworkers and the public; perform simplistic work 26 activities on a consistent basis; perform work at a sufficient pace; and maintain 27 regular attendance were “fair” and her ability to complete a workday/workweek 28 /// ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 12 1 without interruptions from a psychiatric condition and deal with the usual stress 2 encountered in the workplace was “limited to fair.” Tr. 320-321. 3 Plaintiff, citing a Tenth Circuit decision,2 argues a finding of “fair” ability 4 equates to a “marked” or “serious” limitation. ECF No. 18 at 7. Defendant makes 5 an assertion, without support, that Dr. Zipperman clearly did not intend to assess 6 “serious” or “marked” mental limitations. ECF No. 23 at 14. 7 Although the Ninth Circuit has not yet opined on this issue, in an 8 unpublished case, Chang v. Commissioner of Social Security Administration, 507 9 Fed. Appx. 698, 699 (9th Cir. 2013), the Ninth Circuit held that an ALJ “did not 10 err in concluding that when [an examining physician] used the word ‘fair’ to 11 describe [the claimant’s] abilities in a particular area, he implied no disabling 12 impairment in that area.” Id. (citing Cantrell v. Apfel, 231 F.3d 1105, 1107-1108 13 (8th Cir. 2000). In any event, because it was not entirely clear what Dr. Zipperman 14 meant by “fair” or “limited to fair,” the ALJ had a duty to develop the record to 15 ensure Plaintiff’s interests were fully and fairly considered. Tonapetyan v. Halter, 16 242 F.3d 1144, 1150 (9th Cir. 2001); Higbee v. Sullivan, 975 F.2d 558, 561 (9th 17 Cir. 1992) (The ALJ must scrupulously and conscientiously probe into, inquire of, 18 and explore all the relevant facts, being especially diligent to ensure favorable as 19 well as unfavorable facts are elicited.). The ALJ erred by failing to make inquiry 20 of Dr. Zipperman concerning her definition of “fair” and “limited to fair.” On 21 remand, the ALJ shall elicit information from Dr. Zipperman regarding her 22 meaning of “fair” and “limited to fair” as it pertains to Plaintiff’s functioning and 23 thereafter reassess Dr. Zipperman’s report. 24 25 2 Cruse v. United States Dep’t of Health & Human Servs., 49 F.3d 614, 618 26 (10th Cir. 1995) (Defining “fair” ability as “seriously limited but not precluded” 27 and concluding that “seriously limited but not precluded” is essentially the same as 28 the listing requirements’ definition of the term “marked”). ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 13 1 2. Leslie Schneider, Ph.D. 2 The ALJ gave “little weight” to the opinion of Dr. Schneider. Tr. 30-31. 3 In April 2014, Dr. Schneider examined Plaintiff and opined that she was not 4 employable and would not be able to maintain any kind of regular schedule, even 5 part time. Tr. 403-408. 6 In light of the ALJ’s unsupported rejection of Plaintiff’s subjective 7 complaints, erroneous determinations with respect to the testimony of the lay 8 witnesses, and failure to develop the record regarding Dr. Zipperman’s report, this 9 matter must be remanded for additional proceedings. On remand, the ALJ shall 10 additionally reassess the medical opinions of Dr. Schneider, as well as all other 11 medical evidence of record relevant to Plaintiff’s claim for disability benefits. 12 13 CONCLUSION Plaintiff argues the ALJ’s decision should be reversed and remanded for an 14 immediate award benefits. The Court has the discretion to remand the case for 15 additional evidence and findings or to award benefits. Smolen, 80 F.3d at 1292. 16 The Court may award benefits if the record is fully developed and further 17 administrative proceedings would serve no useful purpose. Id. Remand is 18 appropriate when additional administrative proceedings could remedy defects. 19 Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989). In this case, the Court 20 finds that further development is necessary for a proper determination to be made. 21 On remand, the ALJ shall reassess Plaintiff’s alleged symptoms and the 22 testimony of lay witnesses Greg Stevenson, Kim Stewart, and Judy Schuster. The 23 ALJ shall develop the record further by eliciting information from Dr. Zipperman 24 regarding her definition of “fair” and “limited to fair” as it pertains to Plaintiff’s 25 functioning abilities. The ALJ shall reconsider Dr. Zipperman’s report, the 26 medical opinions of Dr. Schneider, and all other medical evidence of record 27 relevant to Plaintiff’s claim for disability benefits. If warranted, the ALJ shall 28 direct Plaintiff to undergo a new consultative psychological examination and/or ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 14 1 elicit the testimony of a medical expert at a new administrative hearing to assist the 2 ALJ in formulating a new RFC determination. The ALJ shall obtain supplemental 3 testimony from a vocational expert, if necessary, and take into consideration any 4 other evidence or testimony relevant to Plaintiff’s disability claim. 5 Accordingly, IT IS ORDERED: 6 1. 7 8 9 10 11 Plaintiff’s Motion for Summary Judgment, ECF No. 18, is GRANTED, in part. 2. Defendant’s Motion for Summary Judgment, ECF No. 23, is DENIED. 3. The matter is REMANDED to the Commissioner for additional proceedings consistent with this Order. 12 4. An 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 and 15 the file shall be CLOSED. 16 DATED August 15, 2017. 17 18 19 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 15
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