Ramsey v. Commissioner of Social Security, No. 1:2016cv03144 - Document 19 (E.D. Wash. 2017)
Court Description: ORDER Granting 16 Plaintiff's Motion for Summary Judgment; denying 17 Defendant's Motion for Summary Judgment. Signed by Magistrate Judge John T. Rodgers. (PL, Case Administrator)
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Ramsey v. Commissioner of Social Security Doc. 19 1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 EASTERN DISTRICT OF WASHINGTON 12 13 14 JANET RAMSEY, No. 1:16-CV-03144-JTR Plaintiff, 15 16 17 18 19 v. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT COMMISSIONER OF SOCIAL SECURITY, Defendant. 20 21 BEFORE THE COURT are cross-motions for summary judgment. ECF 22 No. 16, 17. Attorney D. James Tree represents Janet Ramsey (Plaintiff); Special 23 Assistant United States Attorney L. Jamala Edwards represents the Commissioner 24 of Social Security (Defendant). The parties have consented to proceed before a 25 magistrate judge. ECF No. 7. After reviewing the administrative record and the 26 briefs filed by the parties, the Court GRANTS Plaintiff’s Motion for Summary 27 Judgment; DENIES Defendant’s Motion for Summary Judgment; and 28 REMANDS the matter to the Commissioner for an immediate award of benefits. ORDER GRANTING PLAINTIFF’S MOTION . . . - 1 Dockets.Justia.com 1 JURISDICTION Plaintiff filed an application for Disability Insurance Benefits (DIB) on June 2 3 15, 2010, Tr. 256, alleging disability since December 17, 2009, Tr. 205, due to 4 depression, anxiety, a bad shoulder, a “hurt left knee,” and a neck injury, Tr. 248. 5 The application was denied initially and upon reconsideration. Tr. 112-114, 118- 6 122. Administrative Law Judge (ALJ) Timothy Mangrum held a hearing on July 7 20, 2012 and heard testimony from Plaintiff and vocational expert, Trevor Duncan. 8 Tr. 41-64. Following the hearing, Plaintiff amended her onset date to January 1, 9 2012. Tr. 160-161. The ALJ issued an unfavorable decision on September 28, 10 2012. Tr. 93-102. The Appeals Council granted Plaintiff’s request for review and 11 remanded her case back to the ALJ. Tr. 108-110. The ALJ held a second hearing 12 on August 5, 2014 and heard testimony from Plaintiff and vocational exert, 13 Michael Swanson. Tr. 65-87. The ALJ issued a second unfavorable decision on 14 December 12, 2014. Tr. 26-34. The Appeals Council denied Plaintiff’s request for 15 review of this decision on May 27, 2016. Tr. 1-7. The ALJ’s December 12, 2014 16 decision became the final decision of the Commissioner, which is appealable to the 17 district court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action for judicial 18 review on July 26, 2016. ECF No. 1, 3. STATEMENT OF FACTS 19 The facts of the case are set forth in the administrative hearing transcript, the 20 21 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 22 here. 23 Plaintiff was 48 years old at the amended date of onset. Tr. 205. Plaintiff 24 received her GED in 1986. Tr. 249. She has a work history as an adult/senior 25 caregiver. Id. Plaintiff was working part-time as an adult day care provider at the 26 amended date of onset through the date of the second ALJ hearing. Tr. 49, 71-72. 27 28 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in ORDER GRANTING PLAINTIFF’S MOTION . . . - 2 1 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 2 1039 (9th Cir. 1995). The Court reviews the ALJ’s determinations of law de novo, 3 deferring to a reasonable interpretation of the statutes. McNatt v. Apfel, 201 F.3d 4 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is 5 not supported by substantial evidence or if it is based on legal error. Tackett v. 6 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as 7 being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put 8 another way, substantial evidence is such relevant evidence as a reasonable mind 9 might accept as adequate to support a conclusion. Richardson v. Perales, 402 10 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational 11 interpretation, the court may not substitute its judgment for that of the ALJ. 12 Tackett, 180 F.3d at 1097. If substantial evidence supports the administrative 13 findings, or if conflicting evidence supports a finding of either disability or non- 14 disability, the ALJ’s determination is conclusive. Sprague v. Bowen, 812 F.2d 15 1226, 1229-1230 (9th Cir. 1987). 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). 19 SEQUENTIAL EVALUATION PROCESS 20 The Commissioner has established a five-step sequential evaluation process 21 for determining whether a person is disabled. 20 C.F.R. § 404.1520(a); see Bowen 22 v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through four, the burden of 23 proof rests upon the claimant to establish a prima facie case of entitlement to 24 disability benefits. Tackett, 180 F.3d at 1098-1099. This burden is met once the 25 claimant establishes that physical or mental impairments prevent her from 26 engaging in her previous occupations. 20 C.F.R. § 404.1520(a)(4). If the claimant 27 cannot do her past relevant work, the ALJ proceeds to step five, and the burden 28 shifts to the Commissioner to show that (1) the claimant can make an adjustment to ORDER GRANTING PLAINTIFF’S MOTION . . . - 3 1 other work, and (2) specific jobs exist in the national economy which the claimant 2 can perform. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193-1194 3 (9th Cir. 2004). If the claimant cannot make an adjustment to other work in the 4 national economy, a finding of “disabled” is made. 20 C.F.R. § 404.1520(a)(4)(v). 5 ADMINISTRATIVE DECISION 6 7 8 9 10 On December 12, 2014, the ALJ issued a decision finding Plaintiff was not disabled as defined in the Social Security Act. At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since January 1, 2012, the amended date of onset. Tr. 28. At step two, the ALJ determined Plaintiff had the following severe 11 impairments: status post knee repair; dominant right shoulder strain; and substance 12 abuse. Tr. 29. 13 At step three, the ALJ found Plaintiff did not have an impairment or 14 combination of impairments that met or medically equaled the severity of one of 15 the listed impairments. Tr. 29. 16 At step four, the ALJ assessed Plaintiff’s residual function capacity and 17 determined she could perform a range of light work with the following limitations: 18 “she can only occasionally push or pull using the right upper extremity; she cannot 19 climb ladders, ropes or scaffolds; she cannot crawl; she can occasionally kneel; 20 frequently crouch; she can only occasionally reach overhead.” Tr. 30. The ALJ 21 identified Plaintiff’s past relevant work as caregiver and concluded that Plaintiff 22 was not able to perform this past relevant work. Tr. 32, 100. 23 At step five, the ALJ determined that, considering Plaintiff’s age, education, 24 work experience and residual functional capacity, and based on the testimony of 25 the vocational expert, there were other jobs that exist in significant numbers in the 26 national economy Plaintiff could perform, including the jobs of usher, counter 27 clerk, and sandwich board carrier. Tr. 33. The ALJ concluded Plaintiff was not 28 ORDER GRANTING PLAINTIFF’S MOTION . . . - 4 1 under a disability within the meaning of the Social Security Act at any time from 2 January 1, 2012, through the date of the ALJ’s decision. Tr. 33-34. ISSUES 3 The question presented is whether substantial evidence supports the ALJ’s 4 5 decision denying benefits and, if so, whether that decision is based on proper legal 6 standards. Plaintiff contends the ALJ erred by (1) failing to properly credit 7 Plaintiff’s alleged symptoms, (2) failing to properly weigh medical opinions, (3) 8 failing to find Plaintiff’s mental health impairments severe at step two, and (4) 9 failing to include all of Plaintiff’s limitations in the residual functional capacity 10 determination.1 11 12 13 14 DISCUSSION A. Plaintiff’s Alleged Symptoms Plaintiff contests the ALJ’s determination that her alleged symptoms were less than fully credible. ECF No. 16 at 16-18. 15 It is generally the province of the ALJ to make credibility determinations, 16 Andrews, 53 F.3d at 1039, but the ALJ’s findings must be supported by specific 17 cogent reasons, Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent 18 affirmative evidence of malingering, the ALJ’s reasons for rejecting the claimant’s 19 testimony must be “specific, clear and convincing.” Smolen v. Chater, 80 F.3d 20 1273, 1281 (9th Cir. 1996); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). 21 22 1 Plaintiff characterizes the third issue as the ALJ’s failure to find any non- 23 exertional impairments in the residual functional capacity determination. ECF No. 24 16 at 6. However, in the text of the briefing, she argues that the ALJ failed to find 25 her mental health impairments as severe resulting in the mental functional 26 limitations being left out of the residual functional capacity determination. Id. at 27 18-20. Therefore, the Court has broken the issue in two, addressing step two and 28 the residual functional capacity separately. ORDER GRANTING PLAINTIFF’S MOTION . . . - 5 1 “General findings are insufficient: rather the ALJ must identify what testimony is 2 not credible and what evidence undermines the claimant’s complaints.” Lester, 81 3 F.3d at 834. 4 The ALJ found Plaintiff less than fully credible concerning the intensity, 5 persistence, and limiting effects of her symptoms. Tr. 30. The ALJ reasoned that 6 Plaintiff was less than fully credible because (1) the medical evidence did not 7 support her allegations, (2) her work activity suggested she was not disabled, and 8 (3) she could perform light housework. Tr. 31, 99. 9 10 1. Medical Evidence The ALJ’s first reason for finding Plaintiff less than fully credible, that the 11 medical evidence did not support her allegations, does not meet the specific, clear, 12 and convincing standard. Objective medical evidence is a “relevant factor in 13 determining the severity of the claimant’s pain and its disabling effects”; however, 14 it cannot be the sole reason the ALJ relies upon when rejecting Plaintiff’s 15 statements. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). Considering 16 the other two reasons the ALJ provided for finding Plaintiff less than fully credible 17 failed to meet the specific, clear and convincing standard, the ALJ’s reliance on 18 objective medical evidence is insufficient to support an adverse credibility 19 determination. 20 2. Work Activity 21 The ALJ’s second reason for finding Plaintiff less than fully credible, that 22 Plaintiff’s work activities suggest that she is not disabled, does not meet the 23 specific, clear, and convincing standard. 24 Daily activities that are inconsistent with a claimant’s allegations are a 25 relevant credibility consideration. Rollins, 261 F.3d at 857. Even where a 26 claimant’s daily activities “suggest some difficulty functioning, they may be 27 grounds for discrediting the claimant’s testimony to the extent they contradict 28 ORDER GRANTING PLAINTIFF’S MOTION . . . - 6 1 claims of a totally debilitating impairment.” Molina v. Astrue, 674 F.3d 1104, 2 1113 (9th Cir. 2012). In the September 28, 2012 decision, which was incorporated into the 3 4 December 12, 2014 decision, the ALJ relied on a statement from Plaintiff that, 5 “she sometimes cannot stand up from the couch to get her medications and that she 6 is too tired, short of breath, and anxious to work,” as inconsistent with Plaintiff’s 7 ability to work part-time. Tr. 99 citing Tr. 53. However, Plaintiff reported that she 8 only works three hours a day and misses work as often as three to four times a 9 month. Tr. 72. The fact that “sometimes” her symptoms prevent her from leaving 10 the couch is not inconsistent with the ability to work part-time at an inconsistent 11 rate. As such, this is not a specific, clear and convincing reason to find Plaintiff 12 less than fully credible. In both the ALJ’s decisions, he found that the ability to work part-time was 13 14 inconsistent with Plaintiff’s report of disability. Tr. 31, 99. On July 7, 2010, 15 Plaintiff reported that she had worked as a caregiver since June of 2010, working 16 20 hours a week and earning $10.02 an hour and this was deemed to be below 17 substantial gainful activity. Tr. 240, 246. On the same day, but on a different 18 from, she stated that she had worked as a caregiver from 1995 to the present for 19 eight hours per day, five days per week for a rage of $10.02 an hour. Tr. 249. In a 20 later, undated report, she asserted that she had been working from 2005 to the 21 present for ten to fifteen hours a week. Tr. 314. At the July 20, 2012 hearing, she 22 reported working 44 hours per month. Tr. 47, 49. At the August 5, 2014 hearing, 23 she reported that she worked three hours a day Monday through Friday; however, 24 there were some days that she could not attend work due to her impairments. Tr. 25 72. 26 The ALJ in both decisions found that Plaintiff’s earnings did not exceed 27 substantial gainful activity. Tr. 28, 95. The ALJ failed to provide how Plaintiff’s 28 statements that she could work part time five days a week was inconsistent with ORDER GRANTING PLAINTIFF’S MOTION . . . - 7 1 her assertions of disability. In formulating the residual functional capacity, the 2 ALJ is to assess the claimant’s “ability to do sustained work-related physical and 3 mental activities in a work setting on a regular and continuing basis,” where 4 “regular and continuing basis” is defined as eight hours a day, five days a week, or 5 an equivalent work schedule. S.S.R. 96-8p. Therefore, the fact that a claimant 6 struggled to maintain a part-time job is not inconsistent with the assertions of 7 disability. In fact, it can be evidence supporting the assertion that a claimant is 8 unable to maintain work at a “regular and continuing basis.” 9 Defendant asserts that the ALJ found Plaintiff lacked credibility because she 10 inconsistently reported the hours that she worked. ECF No. 17 at 7. However, that 11 is not the analysis the ALJ provided in his decision. He found that “claimant’s 12 employment as a caregiver constitutes significant work activity that strongly 13 suggests she is not disabled.” Tr. 31. As such, Defendant’s assertion is a post hoc 14 rationalization, which cannot be considered by this Court. See Orn v. Astrue, 495 15 F.3d 625, 630 (9th Cir. 2007) (The Court will “review only the reasons provided 16 by the ALJ in the disability determination and may not affirm the ALJ on a ground 17 upon which he did not rely.”). 18 In conclusion, Plaintiff was able to retain part-time work as a caregiver. 19 This evidence, however, is consistent with Plaintiff’s testimony regarding her 20 limitations and provides no support to the ALJ’s conclusion that Plaintiff was not 21 as impaired as she alleged. 22 3. Housework 23 The ALJ’s third reason for finding Plaintiff less than fully credible, that 24 Plaintiff reported being able to perform light housework, Tr. 99 2, does not meet the 25 specific, clear, and convincing standard. 26 27 28 2 This reason was expressed in the ALJ’s first decision and was incorporated into the second. Tr. 31. ORDER GRANTING PLAINTIFF’S MOTION . . . - 8 A claimant’s daily activities may support an adverse credibility finding if (1) 1 2 the claimant’s activities contradict her other testimony, or (2) “the claimant is able 3 to spend a substantial part of [her] day engaged in pursuits involving performance 4 of physical functions that are transferable to a work setting.” Orn, 495 F.3d at 639 5 (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). “The ALJ must make 6 ‘specific findings relating to [the daily] activities’ and their transferability to 7 conclude that a claimant’s daily activities warrant an adverse credibility 8 determination.” Id. (quoting Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 9 2005)). A claimant need not be “utterly incapacitated” to be eligible for benefits. 10 Fair, 885 F.2d at 603. The ALJ failed to make any findings as to how the ability to perform light 11 12 housework was inconsistent with Plaintiff’s statements or how these activities were 13 transferable to the workplace and whether Plaintiff spent a “substantial part” of her 14 day engaged in these activities. Therefore, this reason also fails to meet the 15 specific, clear and convincing standard. 16 As discussed below, the credit-as-true rule in Garrison v. Colvin applies to 17 Dr. Robertson’s opinion, justifying a remand for an immediate award of benefits. 18 759 F.3d 995, 1020-1022 (9th Cir. 2014). 19 B. 20 Medical Opinions Plaintiff argues the ALJ failed to properly consider and weigh the medical 21 opinions expressed by Julia K. Robertson, M.D., Jamie E. Simmons, M.D., and 22 Theodore H. Palmatier, M.D. ECF No. 16 at -166. 23 In weighing medical source opinions, the ALJ should distinguish between 24 three different types of physicians: (1) treating physicians, who actually treat the 25 claimant; (2) examining physicians, who examine but do not treat the claimant; 26 and, (3) nonexamining physicians who neither treat nor examine the claimant. 27 Lester, 81 F.3d at 830. The ALJ should give more weight to the opinion of a 28 treating physician than to the opinion of an examining physician. Orn, 495 F.3d at ORDER GRANTING PLAINTIFF’S MOTION . . . - 9 1 631. Likewise, the ALJ should give more weight to the opinion of an examining 2 physician than to the opinion of a nonexamining physician. Id. 3 When a treating physician’s opinion is not contradicted by another 4 physician, the ALJ may reject the opinion only for “clear and convincing” reasons. 5 Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). When a treating 6 physician’s opinion is contradicted by another physician, the ALJ is only required 7 to provide “specific and legitimate reasons” for rejecting the opinion. Murray v. 8 Heckler, 722 F.2d 499, 502 (9th Cir. 1983). Likewise, when an examining 9 physician’s opinion is not contradicted by another physician, the ALJ may reject 10 the opinion only for “clear and convincing” reasons, and when an examining 11 physician’s opinion is contradicted by another physician, the ALJ is only required 12 to provide “specific and legitimate reasons.” Lester, 81 F.3d at 830-831. 13 The specific and legitimate standard can be met by the ALJ setting out a 14 detailed and thorough summary of the facts and conflicting clinical evidence, 15 stating his interpretation thereof, and making findings. Magallanes v. Bowen, 881 16 F.2d 747, 751 (9th Cir. 1989). The ALJ is required to do more than offer his 17 conclusions, he “must set forth his own interpretations and explain why they, 18 rather than the doctors’, are correct.” Embrey v. Bowen, 849 F.2d 418, 421-422 19 (9th Cir. 1988). 20 1. 21 On March 7, 2012, Dr. Robertson completed a Medical Report form and Julia K. Robertson, M.D. 22 opined that Plaintiff would have to lie down four hours a day and that she would 23 miss an average of three days a month due to her medical impairments if she were 24 attempting to work a forty hour work week. Tr. 532-533. The ALJ rejected this 25 opinion because (1) she did not appear to know Plaintiff was working part-time, 26 and (2) that the opinion was “incongruent with the rest of the medical record and 27 the claimant’s ongoing work activities.” Tr. 31, 100. Plaintiff appears to concede 28 that specific and legitimate is the applicable standard for this opinion. ECF No. 16 ORDER GRANTING PLAINTIFF’S MOTION . . . - 10 1 at 8-9. The ALJ’s reasons fail to meet the specific and legitimate standard. First, 2 3 the ALJ’s conclusion that Dr. Robertson was not aware of Plaintiff’s part-time 4 work is not supported by the record. While her treatment reports do not include a 5 reference to any work status, she was provided records from other providers who 6 did state that Plaintiff was employed. Tr. 426, 428, 430, 432, 435-437, 478, 480, 7 485-487. As such, the ALJ’s first reason fails. The ALJ’s second reason, that the opinion was “incongruent” with the 8 9 medical evidence in the record, also fails to meet the specific and legitimate 10 standard. Here, the ALJ made the assertion, but failed to state how that opinion 11 was inconsistent with the record. The ALJ is required to do more than offer his 12 conclusions, he “must set forth his own interpretations and explain why they, 13 rather than the doctors’, are correct.” Embrey, 849 F.2d at 421-422. As such, the 14 ALJ did not provide a legally sufficient reason for rejecting Dr. Robertson’s 15 opinion. 16 2. 17 On June 25, 2014, Dr. Simmons completed a Mental Source Statement in Jamie E. Simmons, M.D. 18 which she opined that Plaintiff was markedly limited in three areas of mental 19 functioning and moderately limited in four additional areas of mental functioning. 20 Tr. 615-617. Additionally, Dr. Simmons opined that Plaintiff would likely be off- 21 task twelve to twenty percent of the time during a forty-hour work schedule. Tr. 22 617. 23 The ALJ gave Dr. Simmons’s opinion “little weight” because (1) she did not 24 assign Plaintiff a residual functional capacity assessment, (2) the narrative section 25 of the opinion was based on Plaintiff’s self-reports, and (3) she expressed her 26 opinion on a check-the-box form. Tr. 31. 27 The ALJ’s first reason, that Dr. Simmons failed to express her opinion in a 28 residual functional capacity assessment form, is not legally sufficient. A residual ORDER GRANTING PLAINTIFF’S MOTION . . . - 11 1 functional capacity assessment is the most a claimant can do despite her 2 limitations. 20 C.F.R. § 404.1545(a)(1). A residual functional capacity assessment 3 is part of the five-step evaluation process that the ALJ is responsible for 4 determining. See 20 C.F.R. §§ 404.1502(j); 404.1520(a)(4)(iv). In doing so, the 5 ALJ is to assess the nature and extent of the claimant’s mental limitations and 6 restriction. 20 C.F.R. § 404.1545(c). Dr. Simmons’s opinion addressed twenty 7 different functional abilities and the degree to which Plaintiff was limited in each 8 ability. Tr. 615-617. The severity of each limitation had a definition, such as 9 markedly limited was defined as “[v]ery significant interference with basic work- 10 related activities i.e., unable to perform the described mental activity for more than 11 33% of the work day,” and moderately limited was defined as a “[s]ignificant 12 interference with basic work-related activities i.e., unable to perform the described 13 mental activity for at least 20% of the work day up to 33% of the work day.” Tr. 14 615. As such, the opinion provided the percentage of the day Plaintiff was capable 15 of each ability. Dr. Simmons’s opinion addressed the extent of Plaintiff’s abilities 16 and limitations. This was to be considered by the ALJ, whose job it was to form 17 the residual functional capacity assessment. Therefore, this reason fails to meet the 18 specific and legitimate standard. 19 The ALJ’s second reason for giving Dr. Simmons’s opinion little weight, 20 that the narrative section was based on Plaintiff’s self-reports, is not legally 21 sufficient. A doctor’s opinion may be discounted if it relies on a claimant’s 22 unreliable self-report. Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005); 23 Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). But the ALJ must 24 provide the basis for his conclusion that the opinion was based on a claimant’s 25 unreliable self-reports. Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014). 26 Here, the ALJ attempted to provide such a basis by referencing a portion of the 27 narrative, that “she lost a job because she could not understand the paperwork.” 28 Tr. 31. However, the ALJ failed to support his assertion that Plaintiff was ORDER GRANTING PLAINTIFF’S MOTION . . . - 12 1 unreliable in her self-reports. See supra. As such, this reason fails to meet the 2 specific and legitimate standard. The ALJ’s third reason for giving Dr. Simmons’s opinion “little weight,” 3 4 that it was based on a check the box form, fails to meet the specific and legitimate 5 standard. An ALJ may reject check-the-box reports that do not contain any 6 explanation of the bases for their conclusions. Crane v. Shalala, 76 F.3d 251, 253 7 (9th Cir. 1996). The Ninth Circuit has found that check-the-box forms that are 8 “supported by numerous records” are “entitled to weight that an otherwise 9 unsupported and unexplained check-box form would not merit.” Garrison v. 10 Colvin, 759 F.3d 995, 1013 (9th Cir. 2014). Here, Dr. Simmons provided a 11 narrative regarding the limitations. Tr. 617. As such, this form is not unexplained. 12 Additionally, Plaintiff testified that she had been treated by Dr. Simmons for 13 nearly two years. Tr. 73. Therefore, the ALJ erred in his treatment of the opinion. 14 3. Theodore H. Palmatier, M.D. 15 In March of 2010, Dr. Palmatier limited Plaintiff to light duty work but no 16 lifting greater than fifteen pounds. Tr. 369. By August of 2010, he limited her to 17 light duty, “which would include no reaching above shoulder height, [and] no 18 lifting greater than 15 pounds.” Tr. 383. The ALJ failed to address Dr. Palmatier’s 19 opinions in his decision. 20 Defendant asserts that Dr. Palmatier’s opinions were neither significant nor 21 probative and did not need to be discussed. ECF No. 17 at 15. The Court 22 recognizes that the opinions were provided prior to Plaintiff’s onset date. 23 However, the opinions the ALJ gives significant weight, Dr. Tesar and Dr. Staley, 24 were both penned prior to the date of onset. Tr. 99. As such, there is an 25 incongruence in the ALJ’s reliance on two early opinions and the failure to address 26 a third opinion from the same time period. The ALJ erred in not considering the 27 opinion. However, Dr. Robertson’s opinion, if credited as true, is sufficient to 28 support a remand for benefits. See infra. Therefore, since this opinion predates the ORDER GRANTING PLAINTIFF’S MOTION . . . - 13 1 alleged onset date, it would not be judicially efficient to remand this case simply 2 for the ALJ to address this opinion. 3 C. 4 5 Step Two Plaintiff asserts that the ALJ erred in his step two determination by finding that her mental health impairments were not severe. ECF No. 16 at 18-19. 6 Step-two of the sequential evaluation process requires the ALJ to determine 7 whether or not the claimant “has a medically severe impairment or combination of 8 impairments.” Smolen, 80 F.3d at 1290 (citation omitted). “An impairment or 9 combination of impairments can be found ‘not severe’ only if the evidence 10 establishes a slight abnormality that has ‘no more than a minimal effect on an 11 individual[’]s ability to work.’” Id. at 1290. The step-two analysis is “a de 12 minimis screening device to dispose of groundless claims.” Id. In his step two 13 determination, the ALJ found Plaintiff’s depression and attention deficit 14 hyperactivity disorder to be not severe. Tr. 29. 15 Considering the ALJ erred in his treatment of the opinion of Dr. Simmons 16 concerning Plaintiff’s mental health limitations, remanding the case for additional 17 considering of the step two determination would appear to be appropriate. 18 However, the record is sufficient to remand for an immediate award of benefits 19 based on Dr. Robertson’s opinion and Plaintiff physical impairments. See infra. 20 Therefore, it would not be judicially efficient to send the case back with 21 instructions to make a new step two determination. 22 D. Residual Functional Capacity 23 Plaintiff challenges the ALJ’s residual functional capacity determination by 24 asserting that the ALJ failed to include all her limitations resulting from all of her 25 impairments, specifically omitting the limitations resulting from Plaintiff’s mental 26 health. ECF No. 16 at 18-19. In determining a claimant’s residual functional 27 capacity, the ALJ is to consider all of the claimant’s impairments, both severe and 28 not severe. 20 C.F.R. § 404.1545(a)(2). However, as addressed below, by ORDER GRANTING PLAINTIFF’S MOTION . . . - 14 1 crediting Dr. Robertson’s opinion as true, the record is sufficient based on 2 Plaintiff’s physical limitations to remand the case for an immediate award of 3 benefits. REMEDY 4 5 Plaintiff asserts that the case should be remanded for an immediate award of 6 benefits arguing that the improperly discredited evidence should be considered. 7 ECF No. 16 at 20. The Ninth Circuit has set forth a three part standard for 8 determining when to credit improperly discounted medical opinion evidence as 9 true: (1) the record has been fully developed and further administrative 10 proceedings would serve no purpose; (2) the ALJ has failed to provide legally 11 sufficient reasons for rejecting the evidence in question; and (3) if the improperly 12 discredited evidence were credited as true the ALJ would be required to find 13 Plaintiff eligible for benefits. Garrison, 759 F.3d at 1020. 14 Here, the first standard is met as the record pertaining to Plaintiff’s physical 15 impairments is fully developed. Second, the ALJ failed to provide legally 16 sufficient reasons for discounting Dr. Robertson’s opinion, see supra. Third, if Dr. 17 Robertson’s opinion were credited as true, the ALJ would be required to find 18 Plaintiff eligible for benefits. The opinions regarding Plaintiff’s physical abilities 19 that the ALJ relied were Dr. Tesar’s opinion dated June 22, 2010, Dr. Stanley’s 20 opinion dated February 17, 2011, and Dr. Scottolini’s opinion dated May 20, 2011. 21 Tr. 99. All these opinions predated the January 1, 2012 alleged date of onset 22 making them of limited relevance. See Carmickle v. Comm’r, Soc. Sec. Admin., 23 533 F.3d 1155, 1165 (9th Cir. 2008) (“Medical opinions that predate the alleged 24 onset of disability are of limited relevant.”). Additionally, two separate vocational 25 experts testified that missing work at the rate opined by Dr. Robertson would be 26 work preclusive. Tr. 63, 83. Therefore, the Court finds it appropriate in this case 27 to credit Dr. Robertson’s opinion as true and remand the proceedings for an 28 immediate award of benefits. ORDER GRANTING PLAINTIFF’S MOTION . . . - 15 1 CONCLUSION 2 Accordingly, IT IS ORDERED: 3 1. 4 5 Defendant’s Motion for Summary Judgment, ECF No. 17, is DENIED. 2. Plaintiff’s Motion for Summary Judgment, ECF No. 16, is 6 GRANTED and the matter is REMANDED to the Commissioner for an 7 immediate award of benefits. 8 3. Application for attorney fees may be filed by separate motion. 9 The District Court Executive is directed to file this Order and provide a copy 10 to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff 11 and the file shall be CLOSED. 12 DATED September 5, 2017. 13 14 15 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION . . . - 16
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