Newland v. Commissioner of Social Security, No. 1:2017cv03184 - Document 17 (E.D. Wash. 2018)
Court Description: ORDER Granting in Part 14 Plaintiff's Motion for Summary Judgment; denying 15 Defendant's Motion for Summary Judgment. Signed by Magistrate Judge John T. Rodgers. (PL, Case Administrator)
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Newland v. Commissioner of Social Security Doc. 17 1 2 3 4 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 5 Oct 22, 2018 6 SEAN F. MCAVOY, CLERK 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF WASHINGTON 11 12 KEVIN N., 13 No. 1:17-CV-03184-JTR-1 Plaintiff, 14 v. 15 16 17 COMMISSIONER OF SOCIAL SECURITY, 18 ORDER GRANTING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT MOTION GRANTED in part (ECF No. 14) Defendant. MOTION DENIED (ECF No. 15) 19 20 21 Before the Court are cross-motions for summary judgment. ECF Nos. 14, 22 15. Plaintiff, Kevin N., is represented by counsel D. James Tree. Defendant, the 23 Commissioner of Social Security, is represented by Special Assistant United States 24 Attorney Summer Stinson. The parties have consented to proceed before a 25 magistrate judge. ECF No. 7. After reviewing the administrative record and the 26 briefs submitted by both parties, the Court GRANTS in part Plaintiff’s Motion for 27 Summary Judgment, ECF No. 14, and DENIES Defendant’s Motion for Summary 28 Judgment, ECF No. 15. ORDER - 1 Dockets.Justia.com 1 JURISDICTION 2 Plaintiff filed an application for Disability Insurance Benefits (DIB) on April 3 8, 2014, Tr. 164-72, alleging that he became unable to work due to his conditions 4 on April 15, 1985. Tr. 173. He later amended his onset date to February 28, 2012. 5 Tr. 173-74. The application was denied both initially, Tr. 82-92, and upon 6 reconsideration, Tr. 93-107. Administrative Law Judge (ALJ) Wayne N. Araki 7 held a hearing on June 8, 2016, and heard testimony from Plaintiff and vocational 8 expert (VE) Trevor Duncan. Tr. 35-81, 134-53. The ALJ issued an unfavorable 9 decision on August 3, 2016. Tr. 17-34. The Appeals Council denied Plaintiff’s 10 request for review on August 24, 2017, Tr. 1-6, and the ALJ’s decision became the 11 final decision of the Commissioner, which is appealable to the district court 12 pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action for judicial review on 13 October 23, 2017. ECF Nos. 1, 4. STATEMENT OF FACTS 14 The facts of the case are set forth in the administrative hearing transcript, the 15 16 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 17 here. 18 Plaintiff was 58 years old on the amended onset date. Tr. 166, 173. Plaintiff 19 has never been married, has never had consistent employment, and has no close 20 family support. Plaintiff was diagnosed with depression and anxiety over thirty 21 years ago, and has attempted many kinds of therapy and medication in attempt to 22 manage his symptoms. Despite these efforts, Plaintiff has attempted suicide no 23 less than four times in his life. ECF No. 14 at 3-4. 24 Plaintiff reports that his conditions prevent him from regulating his emotions 25 arising from interpersonal conflict, especially in the workplace, and such perceived 26 conflicts lead him to decompensate to the point of being terminated or resigning. 27 ECF No. 14 at 5. Plaintiff has been able to volunteer regularly, however, three 28 times a week at the food bank for approximately 10 hours a week. ORDER - 2 1 2 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 3 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 4 1039 (9th Cir. 1995). The Court reviews the ALJ’s determinations of law de novo, 5 deferring to a reasonable interpretation of the statutes. McNatt v. Apfel, 201 F.3d 6 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is 7 not supported by substantial evidence or if it is based on legal error. Tackett v. 8 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). 9 Substantial evidence is defined as being more than a mere scintilla, but less 10 than a preponderance. Id. at 1098. Put another way, substantial evidence is such 11 relevant evidence as a reasonable mind might accept as adequate to support a 12 conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971). If the evidence is 13 susceptible to more than one rational interpretation, the Court may not substitute its 14 judgment for that of the ALJ. Tackett, 180 F.3d at 1091. 15 If substantial evidence supports the administrative findings, or if conflicting 16 evidence supports a finding of either disability or non-disability, the ALJ’s 17 determination is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 18 1987). Nevertheless, a decision supported by substantial evidence will be set aside 19 if the proper legal standards were not applied in weighing the evidence and making 20 the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 432, 21 433 (9th Cir. 1988). SEQUENTIAL EVALUATION PROCESS 22 23 The Commissioner has established a five-step sequential evaluation process 24 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a); 25 416.920(a); see Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). In steps one 26 through four, the burden of proof rests upon the claimant to establish a prima facie 27 case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-99. This 28 burden is met once the claimant establishes that physical or mental impairments ORDER - 3 1 prevent him from engaging in his previous occupations. 20 C.F. R. §§ 2 404.1520(a)(4); 416.920(a)(4). If the claimant cannot do his past relevant work, 3 the ALJ proceeds to step five, and the burden shifts to the Commissioner to show 4 that (1) the claimant can make an adjustment to other work, and (2) specific jobs 5 which the claimant can perform exist in the national economy. Batson v. Comm’r 6 of Soc. Sec. Admin, 359 F.3d 1190, 1193-94 (9th Cir. 2004). If the claimant cannot 7 make an adjustment to other work in the national economy, a finding of “disabled” 8 is made. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v). 9 ADMINISTRATIVE DECISION 10 On August 3, 2016, the ALJ issued a decision finding Plaintiff was not 11 12 disabled under the Social Security Act. Tr. 17-34. At step one, the ALJ found that Plaintiff met the insured status requirements 13 of the Social Security Act through December 31, 2017. The ALJ also found that 14 Plaintiff had not engaged in substantial gainful activity since February 28, 2012, 15 the alleged onset date. Tr. 22. 16 At step two, the ALJ determined Plaintiff had the following severe 17 impairments: anxiety disorder; affective disorder/depression; and personality 18 disorder. Tr. 22. 19 At step three, the ALJ found Plaintiff did not have an impairment or 20 combination of impairments that met or medically equaled the severity of one of 21 the listed impairments. Tr. 22-24. 22 23 24 25 26 27 28 At step four, the ALJ assessed Plaintiff’s residual functional capacity (RFC) as follows: the [ ] capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations: the claimant is able to remember and understand instructions for tasks generally required by occupations with an SVP of 1-4. He is able to carry out instructions for tasks generally required by occupations with an SVP of 1-2. The claimant can have occasional superficial interaction with general public. ORDER - 4 He can have occasional interaction with coworkers and supervisors. The claimant is able to adjust to work setting changes generally associated with occupations with an SVP of 1-2. Assigned work tasks should be able to be completed without assistance of others but occasional assistance would be tolerated. 1 2 3 4 5 Tr. 24, 25-27. 6 The ALJ then identified Plaintiff’s past relevant work as a computer 7 technician; a network administrator, an audit clerk, and a data entry clerk. Tr. 28. 8 The ALJ found that Plaintiff could not perform his past relevant work. Tr. 28. 9 At step five, the ALJ went on to find that there were other jobs in the 10 national economy that exist in significant numbers that Plaintiff could also 11 perform. The ALJ considered Plaintiff’s RFC and the VE testimony and found 12 Plaintiff had the capacity to perform the representative occupations of hand packer 13 (medium), laundry worker, production assembler, and hand packer (light). Tr. 29. 14 The ALJ concluded that Plaintiff was not disabled within the meaning of the 15 Social Security Act at any time from the alleged onset date, February 28, 2012, 16 through the date of the ALJ’s decision. Tr. 29. 17 ISSUES 18 The question presented is whether substantial evidence supports the ALJ’s 19 decision denying benefits, and, if so, whether that decision is based on proper legal 20 standards. Plaintiff contends the ALJ erred by: (1) improperly weighing the 21 opinions of Candice Berger, M.S.W., Melissa Denner, M.S., and Erum Khaleeq, 22 M.D., (2) failing to consider the opinion of treating physician John Asriel, M.D. 23 entirely, and (3) improperly discrediting Plaintiff’s symptom testimony without 24 specific, clear, and convincing reasons. 25 /// 26 /// 27 28 ORDER - 5 DISCUSSION 1 1 2 1. Medical Opinion Evidence Plaintiff asserts that the ALJ improperly weighed the opinion evidence from 3 4 treating physician John Asriel, M.D., treating mental health therapists Melissa 5 Denner, M.S., Candice Berger, M.S.W., and consultative examining physician 6 Erum Khaleeq, M.D. ECF No. 14 at 5-13. Defendant responds that Plaintiff’s 7 argument amounts to an alternative interpretation of the evidence, which is 8 insufficient to challenge the legality of the ALJ’s determination. ECF No. 15 at 9- 9 14. 10 In weighing medical source opinions, the ALJ should distinguish between 11 three different types of physicians: (1) treating physicians, who actually treat the 12 claimant; (2) examining physicians, who examine but do not treat the claimant; 13 and, (3) nonexamining physicians who neither treat nor examine the claimant. 14 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). The ALJ should give more 15 weight to the opinion of a treating physician than to the opinion of an examining 16 physician. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). Likewise, the ALJ 17 should give more weight to the opinion of an examining physician than to the 18 opinion of a nonexamining physician. Id. 19 20 When a treating physician’s opinion is not contradicted by another physician, the ALJ may reject the opinion only for “clear and convincing” reasons. 21 1 22 23 24 25 26 27 28 In Lucia v. S.E.C., 138 S.Ct. 2044 (2018), the Supreme Court recently held that ALJs of the Securities and Exchange Commission are “Officers of the United States” and thus subject to the Appointments Clause. To the extent Lucia applies to Social Security ALJs, the parties have forfeited the issue by failing to raise it in their briefing. See Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008) (the Court will not consider matters on appeal that were not specifically addressed in an appellant’s opening brief). ORDER - 6 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.3d 9 at 830-31. 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 his 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 his 14 conclusions, he “must set forth [his] interpretations and explain why they, rather 15 than the doctors’, are correct.” Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 16 1988). 17 Also, an ALJ is required to consider evidence from “other sources,” 20 18 C.F.R. §§ 404.1527(f), 416.927(f), “as to how an impairment affects a claimant’s 19 ability to work,” Sprague, 812 F.2d at 1232. An ALJ must give “germane” reasons 20 to discount evidence from “other sources.” Dodrill v. Shalala, 12 F.3d 915, 919 21 (9th Cir. 1993). 22 1. 23 An ALJ’s failure to properly address the opinion of a treating physician is John Asriel, M.D. 24 clear error, requiring remand. Garrison v. Colvin, 759 F.3d 995, 1019 (9th Cir. 25 2014). In some circumstances, this error may be harmless, where the ALJ’s 26 opinion provides for meaningful review by the court, or where the treating 27 physician’s opinion is duplicative or substantially deficient. See Loader v. 28 Berryhill, 722 Fed.App’x 653, 655 (9th Cir. 2018); see also Tommasetti v. Astrue, ORDER - 7 1 533 F.3d 1035, 1038 (9th Cir. 2008) (an error is harmless when “it is clear from the 2 record that the . . . error was inconsequential to the ultimate nondisability 3 determination”). Here, the ALJ’s failure to address Dr. Asriel’s opinion was not 4 harmless. 5 Dr. Asriel’s opinion could support a more limited RFC than the ALJ found 6 because the ALJ’s RFC failed to account for Plaintiff’s history of repeated 7 conflicts with supervisors and coworkers. Tr. 24; see also Tr. 74-79 (ALJ’s 8 discussion with VE of adverse job consequences for someone with Plaintiff’s RFC 9 causing disruptions in the workplace). At the hearing, the VE testified that an 10 employee with repeated disruptions in the workplace in the span of a year would 11 likely be terminated. Tr. 76-79. Dr. Asriel stated in his “Assessment & Plan” that 12 he thought “disability was certainly reasonable given his inability to hold down a 13 job and to function in the workplace.” Tr. 541. This report also contains Dr. 14 Asriel’s observations of Plaintiff consistent with the behavior described by the VE 15 at the hearing. Tr. 540 (“has been unable to hold down jobs because of 16 interpersonal problems. He did hold down a job at KVH for 6 yrs (sic), but it was 17 tumultuous, likely involved extraordinary patience on the part of his employer, it 18 was associated with 2 suicide attempts, and he eventually quit without notice”). 19 Proper consideration of Dr. Asriel’s opinion, in conjunction with the VE 20 testimony, may have changed the ALJ’s ultimate disability determination. 21 Defendant argues that the ALJ’s failure to address Dr. Asriel’s opinion was 22 harmless because the opinion was equivocal and on a matter reserved to the 23 Commissioner (i.e. conclusion that he was “disabled”). An ALJ is generally 24 required to afford great weight to a treating physician because “these sources are 25 likely to be the medical professionals most able to provide a detailed, longitudinal 26 picture of [a claimant’s] medical impairment(s) and may bring a unique 27 perspective to the medical evidence that cannot be obtained from the objective 28 medical findings alone. . .” § 404.1527(c)(2). Whether or not Dr. Asriel’s opinion ORDER - 8 1 is equivocal, his opinions and observations of Plaintiff’s behaviors and their 2 consequences over time is extremely relevant to the inquiry at hand. The ALJ’s 3 failure to acknowledge Dr. Asriel’s opinion at all was not harmless. 4 This case is remanded for the ALJ to properly address Dr. Asriel’s opinion. 5 2. 6 Plaintiff also challenges the ALJ’s evaluation of the opinions of Counselor 7 Denner, Counselor Berger, and examining physician Dr. Khaleeq. As this case is 8 being remanded to readdress Dr. Asriel’s opinion, the ALJ is instructed to 9 readdress these opinions as well. Melissa Denner, M.S., Candice Berger, M.S.W., Erum Khaleeq, M.D. Additionally, the Court notes that neither the ALJ nor the parties addressed 10 11 substantial opinion evidence in the record to include: Marty Hoiness, M.D., Tr. 12 320-28; Laura Doughty, M.S., L.M.H.C., Tr. 385-536 (this exhibit in particular 13 contains 152 pages of treatment records which are wholly ignored); Kok Lee, 14 M.D., Tr. 586-656; and David B. Jackson M.D., Tr. 769-788 (regarded as 15 Plaintiff’s “PCP” in late 2015, Tr. 747). An ALJ is required to consider all 16 relevant opinions in the record. See Robbins v. Soc. Sec. Admin., 466 F.3d 880, 17 884 (9th Cir. 2006) (where medical source opinion conflicts with RFC, ALJ must 18 explain why); see also 20 C.F.R. §§ 404.1527(f), 416.927(f) (requiring an ALJ to 19 consider evidence from “other sources” as well); S.S.R. 96-8p. On remand, the ALJ is directed to review and readdress all opinion evidence 20 21 in the record. As the medical evidence is being reviewed, the ALJ is also directed 22 to make a new RFC determination. 23 2. Credibility 24 The evaluation of a claimant’s symptom statements and their resulting 25 limitations relies, in part, on the assessment of the medical evidence. See 20 26 C.F.R. § 404.1529(c); S.S.R. 16-3p. Therefore, in light of the case being remanded 27 for the ALJ to readdress the medical source opinions in the file, a new assessment 28 of Plaintiff’s subjective symptom statements will be necessary. A reference to the ORDER - 9 1 prior credibility determination will not be sufficient to support a credibility 2 analysis for this case. 3 REMEDY 4 The decision whether to remand for further proceedings or reverse and 5 award benefits is within the discretion of the district court. McAllister v. Sullivan, 6 888 F.2d 599, 603 (9th Cir. 1989). An immediate award of benefits is appropriate 7 where “no useful purpose would be served by further administrative proceedings, 8 or where the record has been thoroughly developed,” Varney v. Secretary of Health 9 & Human Servs., 859 F.2d 1396, 1399 (9th Cir. 1988), or when the delay caused 10 by remand would be “unduly burdensome,” Terry v. Sullivan, 903 F.2d 1273, 1280 11 (9th Cir. 1990); see also Garrison, 759 F.3d at 1021 (noting that a district court 12 may abuse its discretion not to remand for benefits when all of these conditions are 13 met). This policy is based on the “need to expedite disability claims.” Varney, 14 859 F.2d at 1401. But where there are outstanding issues that must be resolved 15 before a determination can be made, and it is not clear from the record that the ALJ 16 would be required to find a claimant disabled if all the evidence were properly 17 evaluated, remand is appropriate. See Benecke v. Barnhart, 379 F.3d 587, 595-96 18 (9th Cir. 2004); Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir. 2000). 19 In this case, it is not clear from the record that the ALJ would be required to 20 find Plaintiff disabled if all the evidence were properly evaluated. Further 21 proceedings are necessary for the ALJ to properly address opinion evidence, 22 properly address the supportability of Plaintiff’s symptom statements, and make a 23 new RFC determination. CONCLUSION 24 25 26 Accordingly, IT IS ORDERED: 27 1. 28 Defendant’s Motion for Summary Judgment, ECF No. 15, is DENIED. ORDER - 10 1 2. Plaintiff’s Motion for Summary Judgment, ECF No. 14, is 2 GRANTED in part, and the matter is REMANDED to the Commissioner for 3 additional proceedings consistent with this Order. 4 The District Court Executive is directed to file this Order and provide a copy 5 to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff 6 and the file shall be CLOSED. 7 IT IS SO ORDERED. 8 DATED October 22, 2018. 9 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER - 11
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