Gray v. Commissioner of Social Security, No. 1:2018cv03066 - Document 17 (E.D. Wash. 2019)
Court Description: ORDER GRANTING, IN PART, 14 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR ADDITIONAL PROCEEDINGS; denying 15 Defendant's Motion for Summary Judgment. FILE CLOSED. Signed by Magistrate Judge John T. Rodgers. (AN, Courtroom Deputy)
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Gray v. Commissioner of Social Security Doc. 17 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 4 Apr 01, 2019 5 SEAN F. MCAVOY, CLERK 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 10 NICKOLIS G., No. 1:18-CV-3066-JTR Plaintiff, 11 12 13 14 15 v. COMMISSIONER OF SOCIAL SECURITY, ORDER GRANTING, IN PART, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR ADDITIONAL PROCEEDINGS Defendant. 16 17 BEFORE THE COURT are cross-motions for summary judgment. ECF 18 No. 14, 15. Attorney D. James Tree represents Nickolis G. (Plaintiff); Special 19 Assistant United States Attorney Justin L. Martin represents the Commissioner of 20 Social Security (Defendant). The parties have consented to proceed before a 21 magistrate judge. ECF No. 7. After reviewing the administrative record and the 22 briefs filed by the parties, the Court GRANTS, IN PART, Plaintiff’s Motion for 23 Summary Judgment; DENIES Defendant’s Motion for Summary Judgment; and 24 REMANDS the matter to the Commissioner for additional proceedings pursuant to 25 42 U.S.C. § 405(g). 26 JURISDICTION 27 Plaintiff filed an application for Supplemental Security Income on March 17, 28 2014, Tr. 163, alleging disability since January 23, 2013 (the date Plaintiff turned ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 1 Dockets.Justia.com 1 18), due to grand mal seizures, silent seizures, and anxiety, Tr. 178. The 2 application was denied initially and upon reconsideration. Administrative Law 3 Judge (ALJ) Virginia M. Robinson held a hearing on May 5, 2016, Tr. 37-75, and 4 issued an unfavorable decision on December 22, 2016, Tr. 18-30. The Appeals 5 Council denied Plaintiff’s request for review on February 22, 2018. Tr. 1-5. The 6 ALJ’s December 2016 decision thus became the final decision of the 7 Commissioner, which is appealable to the district court pursuant to 42 U.S.C. § 8 405(g). Plaintiff filed this action for judicial review on April 26, 2018. ECF No. 9 1, 4. 10 11 STATEMENT OF FACTS Plaintiff was born on January 23, 1995, and was 18 years old on the alleged 12 onset date, January 23, 2013. Tr. 163. Plaintiff completed school through the 10th 13 grade and earned a GED in 2011. Tr. 42, 47, 179. Plaintiff testified at the 14 administrative hearing held on May 5, 2016, that he was working part-time (about 15 five hours a day, one or two days a week) as a security guard at sporting events and 16 concerts. Tr. 43. He stated he believed he was “more than capable” of working a 17 similar job full-time. Tr. 46-47. However, Plaintiff later testified he has not 18 attempted to find full-time work because he was concerned he would have a 19 seizure on the job. Tr. 55. Plaintiff’s disability report indicates he stopped 20 working on January 30, 2013, because of his conditions. Tr. 178. 21 Plaintiff described his main issue as experiencing silent seizures (explained 22 as seizures which are not accompanied by convulsions) and grand mal seizures. 23 Tr. 48-49. Plaintiff sustained a skull fracture in 2009. Tr. 59. He testified he 24 started having silent seizures immediately after the skull fracture and then began 25 having grand mal seizures when he was about 18. Tr. 59-60. He stated the 26 seizures would occasionally result in lip smacking, vomiting, excessive salivation, 27 and hot flashes. Tr. 48. Plaintiff testified he had the big, convulsive seizures at a 28 rate of about once a month. Tr. 51. He indicated he would generally have a bunch ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 2 1 of the smaller, silent seizures over a consecutive four-day period in a month. Tr. 2 51-53. Plaintiff explained that after he experienced a big seizure, he would not 3 able to get out of bed for a 24-hour period and there would be “no chance” he 4 would be able to work that day. Tr. 54-55. Plaintiff stated he has gone to the 5 hospital after every grand mal seizure.1 Tr. 60. He indicated that if he experienced 6 episodes of the smaller seizures, he would have to call in sick to work because he 7 would then have flu-like flu symptoms accompanied by hot flashes and excessive 8 salivation. Tr. 56. STANDARD OF REVIEW 9 The ALJ is responsible for determining credibility, resolving conflicts in 10 11 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 12 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 13 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 14 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 15 only if it is not supported by substantial evidence or if it is based on legal error. 16 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 17 defined as being more than a mere scintilla, but less than a preponderance. Id. at 18 1098. Put another way, substantial evidence is such relevant evidence as a 19 reasonable mind might accept as adequate to support a conclusion. Richardson v. 20 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one 21 rational interpretation, the Court may not substitute its judgment for that of the 22 ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 23 169 F.3d 595, 599 (9th Cir. 1999). If substantial evidence supports the 24 administrative findings, or if conflicting evidence supports a finding of either 25 26 1 Plaintiff’s Mother, Heidi Gray, later testified Plaintiff will occasionally go 27 to the emergency room following a big seizure, but would not go every time. Tr. 28 65. ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 3 1 disability or non-disability, the ALJ’s determination is conclusive. Sprague v. 2 Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision 3 supported by substantial evidence will be set aside if the proper legal standards 4 were not applied in weighing the evidence and making the decision. Brawner v. 5 Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). SEQUENTIAL EVALUATION PROCESS 6 The Commissioner has established a five-step sequential evaluation process 7 8 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 9 416.920(a); Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through 10 four, the burden of proof rests upon the claimant to establish a prima facie case of 11 entitlement to disability benefits. Tackett, 180 F.3d at 1098-1099. This burden is 12 met once a claimant establishes that a physical or mental impairment prevents the 13 claimant from engaging in past relevant work. 20 C.F.R. §§ 404.1520(a)(4), 14 416.920(a)(4). If a claimant cannot perform past relevant work, the ALJ proceeds 15 to step five, and the burden shifts to the Commissioner to show that (1) the 16 claimant can make an adjustment to other work; and (2) specific jobs which the 17 claimant can perform exist in the national economy. Batson v. Commissioner of 18 Social Sec. Admin., 359 F.3d 1190, 1193-1194 (2004). If a claimant cannot make 19 an adjustment to other work in the national economy, a finding of “disabled” is 20 made. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). ADMINISTRATIVE DECISION 21 On December 22, 2016, the ALJ issued a decision finding Plaintiff was not 22 23 disabled as defined in the Social Security Act. At step one, the ALJ found Plaintiff had not engaged in substantial gainful 24 25 activity since March 17, 2014, the disability application date. Tr. 20. At step two, the ALJ determined Plaintiff had the severe impairment of 26 27 epilepsy (major or minor motor seizures). Tr. 20. 28 /// ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 4 1 At step three, the ALJ found Plaintiff did not have an impairment or 2 combination of impairments that meets or medically equals the severity of one of 3 the listed impairments. Tr. 21. The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and found 4 5 Plaintiff could perform a full range of work at all exertional levels but with the 6 following non-exertional limitations: he could do no climbing of ramps, stairs, 7 ladders, ropes or scaffolds; he should avoid concentrated exposure to extreme cold, 8 extreme heat, excessive vibration, pulmonary irritants such as fumes, odors, dust, 9 and gases; and he should not work with dangerous machinery or at unprotected 10 heights. Tr. 22-23. 11 At step four, the ALJ found Plaintiff had no past relevant work. Tr. 28. 12 At step five, the ALJ determined that, based on the testimony of the 13 vocational expert, and considering Plaintiff’s age, education, work experience, and 14 RFC, Plaintiff was capable of making a successful adjustment to other work that 15 exists in significant numbers in the national economy, including the jobs of cashier 16 II, production assembler, and storage facility rental clerk. Tr. 29. The ALJ thus concluded Plaintiff was not under a disability within the 17 18 meaning of the Social Security Act at any time from March 17, 2014, the date the 19 disability application was filed, through the date of the ALJ’s decision, December 20 22, 2016. Tr. 30. ISSUES 21 The question presented is whether substantial evidence supports the ALJ’s 22 23 decision denying benefits and, if so, whether that decision is based on proper legal 24 standards. Plaintiff contends the ALJ erred (1) by failing to properly assess 25 whether Plaintiff met or equaled a Listing; (2) when assessing Dr. David’s medical 26 opinions; and (3) when she gave less than full credit to Plaintiff’s testimony 27 without providing specific, clear and convincing reasons to do so. ECF No. 14 at 28 1. ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 5 DISCUSSION2 1 2 3 A. Step Three Plaintiff argues the ALJ erred by failing to properly assess whether he met or 4 equaled a Listing. ECF No. 14 at 4-10. Defendant responded that Plaintiff failed 5 to establish that he meets the Listing criteria. ECF No. 15 at 5. 6 At step three of the sequential evaluation process, the ALJ considers whether 7 one or more of the claimant’s impairments meets or equals an impairment listed in 8 Appendix 1 to Subpart P of the regulations. 20 C.F.R. § 404.1520(a)(4)(iii). Each 9 Listing sets forth the “symptoms, signs, and laboratory findings” which must be 10 established for a claimant’s impairment to meet the Listing. Tackett v. Apfel, 180 11 F.3d 1094, 1099 (9th Cir. 1999). If a claimant meets or equals a Listing, the 12 claimant is considered disabled without further inquiry. 20 C.F.R. § 416.920(d). 13 The burden of proof is on the claimant to establish he meets or equals any of 14 the impairments in the Listings. See Tackett, 180 F.3d at 1098. “A generalized 15 assertion of functional problems,” however, “is not enough to establish disability at 16 step three.” Id. at 1100 (citing 20 C.F.R. § 404.1526). A mental or physical 17 impairment “must result from anatomical, physiological, or psychological 18 abnormalities which can be shown by medically acceptable clinical and laboratory 19 diagnostic techniques.” 20 C.F.R. § 404.1508. It must be established by medical 20 evidence “consisting of signs, symptoms, and laboratory findings.” Id.; see also 21 22 2 In Lucia v. S.E.C., 138 S.Ct. 2044 (2018), the Supreme Court recently held 23 that ALJs of the Securities and Exchange Commission are “Officers of the United 24 States” and thus subject to the Appointments Clause. To the extent Lucia applies 25 to Social Security ALJs, the parties have forfeited the issue by failing to raise it in 26 their briefing. See Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1161 27 n.2 (9th Cir. 2008) (the Court will not consider matters on appeal that were not 28 specifically addressed in an appellant’s opening brief). ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 6 1 Social Security Ruling (SSR) 96-8p, 1996 WL 374184 *2 (a step three 2 determination must be made based on medical factors). An impairment meets a 3 listed impairment “only when it manifests the specific findings described in the set 4 of medical criteria for that listed impairment.” SSR 83-19, 1983 WL 31248 *2. 5 The ALJ “is not required to discuss the combined effects of a claimant’s 6 impairments or compare them to any listing in an equivalency determination, 7 unless the claimant presents evidence in an effort to establish equivalence.” Burch 8 v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005). 9 Defendant asserts Plaintiff did not allege his seizure disorder met a Listing 10 impairment. ECF No. 15 at 5. However, Plaintiff specified at the administrative 11 hearing that his disability was caused by silent and grand mal seizures. Tr. 48-49. 12 Applying previous versions of Listings 11.02 and 11.03, the ALJ determined 13 “claimant’s seizure disorder” did not meet the requirements of these Listings 14 because there was no showing of convulsive epileptic frequency at more than once 15 a month in spite of at least 3 months of prescribed treatment (former Listing 11.02) 16 and because there was no showing of non-convulsive epileptic frequency at more 17 than once weekly in spite of at least 3 months of prescribed treatment (former 18 Listing 11.03). Tr. 21. However, on July 1, 2016, Social Security issued the 19 Revised Medical Criteria for Evaluating Neurological Disorders, and Listing 11.03 20 was removed and reserved and Listing 11.02 was expanded as follows: 21 22 11.02 Epilepsy, documented by a detailed description of a typical seizure and characterized by A, B, C, or D: 23 24 25 26 27 28 A. Generalized tonic-clonic seizures (see 11.00H1a), occurring at least once a month for at least 3 consecutive months (see 11.00H4) despite adherence to prescribed treatment (see 11.00C); or B. Dyscognitive seizures (see 11.00H1b), occurring at least once a week for at least 3 consecutive months (see 11.00H4) despite adherence to prescribed treatment (see 11.00C); or ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 7 C. Generalized tonic-clonic seizures (see 11.00H1a), occurring at least once every 2 months for at least 4 consecutive months (see 11.00H4) despite adherence to prescribed treatment (see 11.00C); and a marked limitation in one of the following: 1 2 3 4 1. Physical functioning (see 11.00G3a); or 5 2. Understanding, remembering, or applying information (see 11.00G3b(i)); or 6 7 8 3. Interacting with others (see 11.00G3b(ii)); or 9 4. Concentrating, persisting, or maintaining pace (see 11.00G3b(iii)); or 10 11 5. Adapting or managing oneself (see 11.00G3b(iv)); or 12 15 D. Dyscognitive seizures (see 11.00H1b), occurring at least once every 2 weeks for at least 3 consecutive months (see 11.00H4) despite adherence to prescribed treatment (see 11.00C); and a marked limitation in one of the following: 16 1. Physical functioning (see 11.00G3a); or 13 14 17 2. Understanding, remembering, or applying information (see 11.00G3b(i)); or 18 19 20 3. Interacting with others (see 11.00G3b(ii)); or 21 22 4. Concentrating, persisting, or maintaining pace (see 11.00G3b(iii)); or 23 5. Adapting or managing oneself (see 11.00G3b(iv)). 24 25 See Revised Medical Criteria for Evaluating Neurological Disorders, 81 Fed. Reg. 26 43048 (July 1, 2016), available at 2016 WL 3551949. The new listings took effect 27 on September 29, 2016. Id. Because Plaintiff’s case was decided after that date 28 /// ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 8 1 (December 22, 2016), the ALJ erred by failing to apply the new version of Listing 2 11.02, which was in effect at the time of the ALJ’s decision. 3 Moreover, the ALJ devoted a mere two sentences to the former seizure 4 disorder Listings. Tr. 21. This conclusory analysis is inadequate. Lewis v. Apfel, 5 236 F.3d 503, 512 (9th Cir. 2001) (concluding a boilerplate finding that a 6 claimant’s impairment fails to meet or equal a Listing “is insufficient to support a 7 conclusion that a claimant’s impairment does not do so.”) Based on the foregoing, the Court finds the matter must be remanded for the 8 9 ALJ to properly analyze whether Plaintiff met or equaled the new, applicable 10 Listing 11.02, not the outdated Listings 11.02 and 11.03. 11 B. 12 Medical Opinion Evidence Plaintiff argues the ALJ also erred by failing to properly consider the 13 medical opinion evidence of record. ECF No. 14 at 10-16. Plaintiff specifically 14 asserts the ALJ erred by according less than full weight to the opinions of treating 15 physician Ryan David, D.O. Id. Defendant responds that the ALJ reasonably 16 evaluated the treating source opinion of Dr. David. ECF No. 15 at 10. 17 Dr. David completed a “medical report” on May 9, 2016. Tr. 580-581. This 18 report documents Dr. David’s opinion that Plaintiff met or functionally equaled 19 former Listing 11.02 and former Listing 11.03 based on Plaintiff’s generalized 20 seizure disorder. Id. Dr. David additionally opined Plaintiff would need to lie 21 down during the day for variable amounts of time when recovering from seizures, 22 Tr. 577, and would be absent four or more days of work per month due to seizure 23 activity and recovery, Tr. 578. 24 When discussing Dr. David’s opinions, the ALJ accorded “some weight to 25 Dr. David’s overall treating-source opinions with respect to the assessed nature of 26 the seizure disorder,” but gave “less weight to the portion of his opinion that the 27 claimant would miss ‘4 or more days per month’ because of [the seizure 28 disorder].” Tr. 27. ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 9 The ALJ failed to specifically address Dr. David’s opinion that Plaintiff met 1 2 or functionally equaled the former Listings and that Plaintiff would need to lie 3 down during the day for variable amounts of time when recovering from seizures. 4 The Court thus finds the ALJ erred by failing to adequately address treating 5 physician David’s opinion, see Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th 6 Cir. 2015) (if the ALJ fails to specify his rationale, a reviewing court will be 7 unable to review those reasons meaningfully without improperly “substitut[ing] 8 our conclusions for the ALJ’s, or speculat[ing] as to the grounds for the ALJ’s 9 conclusions.”), and a remand is required for reconsideration of Dr. David’s report. 10 Accordingly, Plaintiff’s RFC shall be redetermined, on remand, taking into 11 consideration all opinions of Dr. David, in addition to the other medical evidence 12 of record and any additional or supplemental evidence relevant to Plaintiff’s claim 13 for disability benefits. 14 C. Plaintiff’s Subjective Complaints Plaintiff also contends the ALJ erred by improperly rejecting his subjective 15 16 complaints. ECF No. 14 at 16-20. Defendant argues the ALJ gave clear and 17 convincing reasons for discounting Plaintiff’s symptom testimony. ECF No. 15 at 18 16. 19 It is the province of the ALJ to make credibility determinations. Andrews, 20 53 F.3d at 1039. However, the ALJ’s findings must be supported by specific 21 cogent reasons. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Once 22 the claimant produces medical evidence of an underlying medical impairment, the 23 ALJ may not discredit testimony as to the severity of an impairment because it is 24 unsupported by medical evidence. Reddick, 157 F.3d 715, 722 (9th Cir. 1998). 25 Absent affirmative evidence of malingering, the ALJ’s reasons for rejecting the 26 claimant’s testimony must be “specific, clear and convincing.” Smolen, 80 F.3d at 27 1281; Lester, 81 F.3d at 834. “General findings are insufficient: rather the ALJ 28 must identify what testimony is not credible and what evidence undermines the ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 10 1 claimant’s complaints.” Lester, 81 F.3d at 834; Dodrill v. Shalala, 12 F.3d 915, 2 918 (9th Cir. 1993). 3 The ALJ concluded Plaintiff’s medically determinable impairments could 4 reasonably be expected to cause some of the alleged symptoms; however, 5 Plaintiff’s statements concerning the intensity, persistence and limiting effects of 6 those symptoms were not entirely consistent with the medical and other evidence 7 of record. Tr. 23. The ALJ listed the following reasons for finding Plaintiff’s 8 subjective complaints not persuasive in this case: (1) the objective medical 9 evidence did not support the level of impairment claimed; (2) Plaintiff’s self- 10 reported activities of daily living were inconsistent with his allegations of 11 functional limitations; (3) the record reflected Plaintiff’s tendency to overstate the 12 severity of his condition; (4) there were notable gaps in Plaintiff’s treatment 13 history; (5) there were inconsistent statements in the records, in testimony and 14 between Plaintiff and his mother; and (6) there was evidence Plaintiff’s 15 medications had been helpful in treating his symptoms. Tr. 23-27. 16 While some of the reasons provided by the ALJ for discounting Plaintiff’s 17 testimony may be supported by the evidence of record, this matter must be 18 remanded for additional proceedings to remedy the above noted defects. See 19 supra. Accordingly, on remand, the ALJ shall also reconsider Plaintiff’s 20 statements and testimony and reassess what statements, if any, are not credible and, 21 if deemed not credible, what specific evidence undermines those statements. On 22 remand, the ALJ shall distinguish the statements made by Plaintiff and his mother 23 and address each separately. The ALJ must evaluate the subjective statements and 24 testimony of Plaintiff, an adult claimant; the lay witness statements of Plaintiff’s 25 mother must be separately assessed under a different standard. 26 27 28 CONCLUSION Plaintiff argues the ALJ’s decision should be reversed and remanded for the payment of benefits. The Court has the discretion to remand the case for additional ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 11 1 evidence and findings or to award benefits. Smolen, 80 F.3d at 1292. The Court 2 may award benefits if the record is fully developed and further administrative 3 proceedings would serve no useful purpose. Id. Remand is appropriate when 4 additional administrative proceedings could remedy defects. Rodriguez v. Bowen, 5 876 F.2d 759, 763 (9th Cir. 1989). In this case, the Court finds that further 6 development is necessary for a proper determination to be made. 7 The ALJ’s step three determination in this case is not supported by 8 substantial evidence and must be reevaluated. On remand, the ALJ shall 9 additionally reassess the opinions of Dr. David and reevaluate Plaintiff’s subjective 10 complaints. The ALJ shall thereafter formulate a new RFC determination, obtain 11 supplemental testimony from a vocational expert, if necessary, and take into 12 consideration any other evidence or testimony relevant to Plaintiff’s disability 13 claim. 14 Accordingly, IT IS ORDERED: 15 1. 16 17 18 19 20 Plaintiff’s Motion for Summary Judgment, ECF No. 14, is GRANTED IN PART. 2. Defendant’s Motion for Summary Judgment, ECF No. 15, is DENIED. 3. The matter is REMANDED to the Commissioner for additional proceedings consistent with this Order. 21 4. An 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 and 24 the file shall be CLOSED. 25 DATED April 1, 2019. 26 27 28 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 12
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