Tate OBO David Childers - deceased v. Saul, No. 1:2019cv03184 - Document 14 (E.D. Wash. 2021)
Court Description: ORDER GRANTING 11 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS; denying 12 Motion for Summary Judgment. Signed by Senior Judge Robert H. Whaley. (VR, Courtroom Deputy)
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Tate OBO David Childers - deceased v. Saul Case 1:19-cv-03184-RHW Doc. 14 ECF No. 14 filed 03/25/21 PageID.608 Page 1 of 18 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 Mar 25, 2021 4 SEAN F. MCAVOY, CLERK UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 5 6 SAMANTHA T., O/B/O DAVID C., 7 Plaintiff, No. 1:19-CV-03184-RHW v. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS 8 9 10 ANDREW M. SAUL, COMMISSIONER OF SOCIAL SECURITY, 11 Defendant. 12 13 Before the Court are the parties’ cross-motions for summary judgment, ECF 14 Nos. 11 & 12. Plaintiff brings this action seeking judicial review of the 15 Commissioner’s final decision denying her father’s applications for Social Security 16 Disability Insurance under Title II and Supplemental Security Income under Title 17 XVI of the Social Security Act, 42 U.S.C. §§ 401-434, 1381-1383f. After 18 reviewing the administrative record and briefs filed by the parties, the Court is now 19 fully informed. For the reasons set forth below, the Court GRANTS, in part, 20 Plaintiff’s Motion for Summary Judgment, DENIES Defendant’s Motion for ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 1 Dockets.Justia.com Case 1:19-cv-03184-RHW ECF No. 14 filed 03/25/21 PageID.609 Page 2 of 18 1 Summary Judgment, and REMANDS the matter back to the Commissioner for 2 additional proceedings. 3 I. 4 Jurisdiction The Decedent filed applications for Social Security Disability Insurance and 5 Supplemental Security Income on November 20, 2015. AR 78-79. He alleged a 6 disability onset date of November 1, 2007 on the Supplemental Security Income 7 application, AR 219, and a disability onset date of December 31, 2013 on the 8 Disability Insurance Benefits application, AR 228, which he later amended to 9 January 22, 2014, AR 235. The Decedent’s applications were initially denied on 10 February 5, 2016, AR 108-11, and on reconsideration on April 11, 2016, AR 118- 11 25. 12 Administrative Law Judge (“ALJ”) Cynthia D. Rosa held a hearing on 13 February 22, 2018, but the Decedent did not attend and his counsel stated that he 14 could not be reached. AR 33-36. The hearing was postponed. Id. It later became 15 known that he had died on February 19, 2018. AR 478. The Decedent’s daughter 16 became the substitute party, and hereinafter referred to as Plaintiff. AR 203. The 17 ALJ held a second hearing on July 3, 2018. AR 38-52. Plaintiff amended the 18 alleged onset date to November 5, 2015. AR 41. The ALJ heard testimony from 19 Plaintiff and vocational expert Richard Hinks. AR 38-52. On July 24, 2018, the 20 ALJ issued a decision finding the Decedent ineligible for disability benefits. AR ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 2 Case 1:19-cv-03184-RHW ECF No. 14 filed 03/25/21 PageID.610 Page 3 of 18 1 15-27. The Appeals Council denied Plaintiff’s request for review on June 17, 2 2019. AR 1-5. Plaintiff sought judicial review by this Court on August 9, 2019. 3 ECF No. 1. Accordingly, Plaintiff’s claims are properly before this Court pursuant 4 to 42 U.S.C. § 405(g). 5 6 II. Sequential Evaluation Process The Social Security Act defines disability as the “inability to engage in any 7 substantial gainful activity by reason of any medically determinable physical or 8 mental impairment which can be expected to result in death or which has lasted or 9 can be expected to last for a continuous period of not less than twelve months.” 42 10 11 U.S.C. § 423(d)(1)(A). The Commissioner has established a five-step sequential evaluation process 12 for determining whether a claimant is disabled within the meaning of the Social 13 Security Act. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Lounsburry v. 14 Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). In steps one through four, the 15 burden of proof r ort. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 10 Case 1:19-cv-03184-RHW ECF No. 14 filed 03/25/21 PageID.618 Page 11 of 18 1 Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). Here, the ALJ found 2 that the opined limitations “seem inconsistent with the observations of intact and 3 [sic] memory and concentration from the mental status examination.” AR 25. The 4 mental status exam did find that the Decedent was able to follow a three-step 5 command and do serial 7 subtraction and intact memory. AR 408. However, the 6 ALJ failed to state what portion of the opinion seemed inconsistent with these 7 findings. The specific and legitimate standard can be met by the ALJ setting out a 8 detailed and thorough summary of the facts and conflicting clinical evidence, 9 stating her interpretation thereof, and making findings. Magallanes v. Bowen, 881 10 F.2d 747, 751 (9th Cir. 1989). The ALJ is required to do more than offer her 11 conclusions, she “must set forth [her] interpretations and explain why they, rather 12 than the doctors’, are correct.” Embrey v. Bowen, 849 F.2d 418, 421-422 (9th Cir. 13 1988). 14 The ALJ’s third reason for rejecting Dr. McCabe’s opinion, that it seems 15 inconsistent with the limited course of mental health treatment the Decedent 16 received, is not specific and legitimate. The Ninth Circuit has found that “it is a 17 questionable practice to chastise one with a mental impairment for the exercise of 18 poor judgment in seeking rehabilitation.” Nguyen v. Chater, 100 F.3d 1462, 1465 19 (9th Cir. 1996). 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 11 Case 1:19-cv-03184-RHW 1 ECF No. 14 filed 03/25/21 PageID.619 Page 12 of 18 The ALJ’s fourth reason for rejecting Dr. McCabe’s opinion, that it seems 2 inconsistent with the Decedent’s activities of daily living, is not specific and 3 legitimate. A claimant’s testimony about his daily activities may be seen as 4 inconsistent with the presence of a disabling condition. See Curry v. Sullivan, 925 5 F.2d 1127, 1130 (9th Cir. 1990). Here, the ALJ found that the Decedent’s 6 activities, “such as doing odd jobs for others, which requires some ability to 7 communicate, maintain appropriate behavior, and complete activities,” was 8 inconsistent with the opinion. When asked about his activities of daily living, the 9 Decedent reported the following: 10 11 12 Sporadic meals, generally fast food. He has showed the last couple of days because he stayed at his brother’s but has gone a month without showering. He hasn’t brushed his teeth in a few months. He states his hygiene is very poor which is not normal for him. He is not hungry and in general he just doesn’t care. He is mostly spending his days hiking in the woods trying to find quiet places. 13 14 AR 406. When asked about his work history, he stated that he “is working some 15 side jobs doing some yard work, helping older people with chores around their 16 houses.” Id. However, the ALJ failed to state how the opinion that the Decedent 17 had marked limitations in the abilities to communicate, maintain appropriate 18 behavior, and complete activities was inconsistent the Decedent’s report of odd 19 jobs. The Decedent did not state the frequency of the odd jobs or the time it took 20 him to complete the activities. “[M]any home activities are not easily transferable ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 12 Case 1:19-cv-03184-RHW ECF No. 14 filed 03/25/21 PageID.620 Page 13 of 18 1 to what may be the more grueling environment of the workplace, where it might be 2 impossible to periodically rest or take medication.” Fair v. Bowen, 885 F.2d 597, 3 603 (9th Cir. 1989). Therefore, this falls short of the specific and legitimate 4 standard under Embrey. 5 In conclusion, the ALJ erred in her rejection of Dr. McCabe’s opinion, and 6 this error is harmful because had the opinion been given proper weight the 7 Decedent’s RFC would have included psychological limitations not addressed in 8 the RFC determination made by the ALJ. 9 B. Melanie Mitchell, Psy.D. 10 On November 13, 2015, Dr. Mitchell completed a Review of Medical 11 Evidence for DSHS. She reviewed Dr. McCabe’s opinion and concluded that the 12 narrative supports the functional limitations reported and that the impairment 13 would last 24 months with “very poor prognosis for gainful employment and likely 14 need for long-term resources.” AR 475. The ALJ failed to discuss Dr. Mitchell’s 15 opinion. AR 24-25. 16 “The RFC assessment must always consider and address medical source 17 opinions. If the RFC assessment conflicts with an opinion from a medical source, 18 the adjudicator must explain why the opinion was not adopted.” Social Security 19 Ruling (S.S.R.) 96-8p. Therefore, the ALJ’s failure to discuss the opinion was also 20 a harmful error. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 13 Case 1:19-cv-03184-RHW ECF No. 14 filed 03/25/21 PageID.621 Page 14 of 18 1 3. 2 The Court has found that the ALJ harmfully erred in the treatment of the Credit-As-True Rule 3 opinions of Dr. McCabe and Dr. Mitchell. Therefore, the questions because the 4 most appropriate remedy in this case considering the claimant is deceased. 5 Plaintiff requests that the Court apply the credit-as-true rule and remand the case 6 for an immediate award of benefits. ECF No. 11 at 21. Defendant argues that a 7 remand for additional proceedings would be the most appropriate outcome. ECF 8 No. 12 at 20-21. 9 The decision whether to remand for further proceedings or reverse and 10 award benefits is within the discretion of the district court. McAllister v. Sullivan, 11 888 F.2d 599, 603 (9th Cir. 1989). Reversing and awarding benefits is appropriate 12 when (1) the record has been fully developed and further administrative 13 proceedings would serve no useful purpose; (2) the ALJ has failed to provide 14 legally sufficient reasons for rejecting evidence, whether claimant testimony or 15 medical opinion; and (3) if the improperly discredited evidence were credited as 16 true, the ALJ would be required to find the claimant disabled on remand, the Court 17 remands for an award of benefits. Revels v. Berryhill, 874 F.3d 648, 668 (9th Cir. 18 2017). But where there are outstanding issues that must be resolved before a 19 determination can be made, and it is not clear from the record that the ALJ would 20 be required to find a claimant disabled if all the evidence were properly evaluated, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 14 Case 1:19-cv-03184-RHW ECF No. 14 filed 03/25/21 PageID.622 Page 15 of 18 1 remand is appropriate. See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2 2004); Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir. 2000). 3 Plaintiff argues that since the Decedent has passed away there is no further 4 evidence to develop and there are no outstanding issues. ECF No. 11 at 21. 5 However, the step one determination in the ALJ’s decision identifies an unresolved 6 issue that must be addressed before a finding of disability can be made: 7 12 The claimant worked after the alleged disability onset date but this work activity did not rise to the level of substantial gainful activity. He had earnings of $3,561 in the second quarter of 2017 from T and L Trees Corporation (15D). His earnings were above the level of substantial gainful activity, but as the claimant was unable to testify about why this job ended, impairment related work expenses, and/or special work conditions, the undersigned finds that his work was not substantial gainful activity. Further development of the issue of work activity is unnecessary, as the claimant is found not disabled at Step 5 of the sequential evaluation process, and new evidence of work after the alleged onset of disability would not change the decisional outcome. 13 AR 17-18. Therefore, the ALJ’s step one finding that Plaintiff had not engaged in 14 substantial gainful activity since the amended onset date was contingent on the 15 claim being denied at step five. If Dr. McCabe’s opinion were credit as true, the 16 Decedent’s earnings would continue be an issue that would have to be resolved 17 before benefits could be awarded. As such, the Court remands the ALJ’s decision 18 to develop the record to resolve the outstanding issue of the Decedent’s earnings. 19 The Court recognizes that a new hearing may not be necessary to develop the 20 record to resolve this issue. But earnings records and evidence of accommodations 8 9 10 11 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 15 Case 1:19-cv-03184-RHW ECF No. 14 filed 03/25/21 PageID.623 Page 16 of 18 1 and why the job ended can be requested of the Decedent’s 2017 employer. This 2 will allow the ALJ to make a determination as to whether the work amounted to an 3 unsuccessful work attempt under 20 C.F.R. §§ 404.1574, 416.974. Therefore, 4 remand in the most appropriate resolution of this case. 5 B. 6 Plaintiff’s Remaining Challenges Since this case is being remanded based on the ALJ’s errors in addressing 7 the opinions of Dr. McCabe and Dr. Mitchell, the ALJ will also address Plaintiff’s 8 remaining challenges on remand. This includes, readdressing the opinion of 9 Rebecca Nelson, ARNP and the State agency sources, readdressing the evidence 10 provided by Plaintiff, readdressing the Decedent’s symptom statements, and 11 making a new step five determination. 12 Following a re-evaluation of the medical opinions and the testimony of 13 Plaintiff and the Decedent, a new RFC determination will be made and trigger the 14 need for new determinations at steps four and five. Plaintiff’s challenge of the step 15 five determination includes a challenge to the testimony of the vocational expert 16 based on inconsistencies between his testimony and the Dictionary of Occupational 17 Titles. ECF No. 14-16. As part of a step five determination, the ALJ will elicit 18 testimony from a vocational expert through a forum that will allow Plaintiff’s 19 counsel to cross-examine the expert. This can include interrogatories and/or a 20 supplemental hearing. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 16 Case 1:19-cv-03184-RHW ECF No. 14 filed 03/25/21 PageID.624 Page 17 of 18 1 VIII. Conclusion 2 In this case, the ALJ must develop the record to resolve the outstanding 3 issue of Plaintiff’s work activity at step one. Additionally, the ALJ must properly 4 address the medical opinions from Dr. McCabe, Dr. Mitchell, and Nurse Nelson. 5 The ALJ will further re-evaluate the statements made by Plaintiff and the symptom 6 statements of the Decedent. As part of this re-evaluation of the evidence, the ALJ 7 will need to make a new RFC determination, which triggers new determinations at 8 steps four and five. As part of any step five determination, testimony will be taken 9 from a vocational expert and Plaintiff’s counsel will be given the opportunity to 10 cross examine the expert. 11 Accordingly, IT IS ORDERED: 12 1. Plaintiff’s Motion for Summary Judgment, ECF No. 11, is GRANTED, 13 in part. 14 2. Defendant’s Motion for Summary Judgment, ECF No. 12, is DENIED. 15 3. This matter is REMANDED to the Commissioner for further proceedings 16 consistent with this Order. 17 /// 18 /// 19 /// 20 /// ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 17 Case 1:19-cv-03184-RHW ECF No. 14 filed 03/25/21 PageID.625 Page 18 of 18 1 4. Judgment shall be entered in favor of Plaintiff and the file shall be 2 CLOSED. 3 IT IS SO ORDERED. The District Court Executive is directed to enter this 4 5 Order, forward copies to counsel and close the file. DATED March 25, 2021. 6 7 s/ Robert H. Whaley ROBERT H. WHALEY Senior United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 18
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