Gardee v. Saul, No. 1:2019cv03193 - Document 15 (E.D. Wash. 2020)

Court Description: ORDER GRANTING 11 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, INTER ALIA; denying 12 Defendant's Motion for Summary Judgment. FILE CLOSED. Signed by Senior Judge Lonny R. Suko. (AN, Courtroom Deputy)

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Gardee v. Saul Doc. 15 Case 1:19-cv-03193-LRS ECF No. 15 filed 04/17/20 PageID.1064 Page 1 of 21 1 2 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 3 Apr 17, 2020 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 5 6 7 8 9 10 11 ) ) ) ) ) ) ) ) ) ) ) ) ) JAMES G., Plaintiff, vs. COMMISSIONER OF SOCIAL SECURITY, 12 SEAN F. MCAVOY, CLERK No. 1:19-CV-03193-LRS ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, INTER ALIA 14 Defendant. ______________________________ BEFORE THE COURT are the Plaintiff's Motion For Summary Judgment 15 (ECF No. 11) and the Defendant's Motion For Summary Judgment (ECF No. 12). 13 16 17 JURISDICTION 18 James G., Plaintiff, applied for Title XVI Supplemental Security Income 19 benefits (SSI) on February 26, 2015. The application was denied initially and on 20 reconsideration. Plaintiff timely requested a hearing which was held on October 5, 21 2017, before Administrative Law Judge (ALJ) M.J. Adams. Plaintiff testified at the 22 hearing, as did Vocational Expert (VE), Stephanie Boeshaar. On April 3, 2018, the 23 ALJ issued a decision finding the Plaintiff not disabled. The Appeals Council denied 24 a request for review of the ALJ’s decision, making that decision the Commissioner’s 25 final decision subject to judicial review. 26 appealable to district court pursuant to 42 U.S.C. §405(g) and §1383(c)(3). The Commissioner’s final decision is 27 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 1 Dockets.Justia.com Case 1:19-cv-03193-LRS ECF No. 15 filed 04/17/20 PageID.1065 Page 2 of 21 STATEMENT OF FACTS 1 2 The facts have been presented in the administrative transcript, the ALJ's 3 decision, the Plaintiff's and Defendant's briefs, and will only be summarized here. At 4 the time of the administrative hearing, Plaintiff was 30 years old. He has an 8th grade 5 education and no past relevant work experience. Plaintiff’s alleged disability onset 6 date is October 17, 2014, on which date he was 28 years old. 7 STANDARD OF REVIEW 8 9 "The [Commissioner's] determination that a claimant is not disabled will be 10 upheld if the findings of fact are supported by substantial evidence...." Delgado v. 11 Heckler, 722 F.2d 570, 572 (9th Cir. 1983). Substantial evidence is more than a mere 12 scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975), but less 13 than a preponderance. McAllister v. Sullivan, 888 F.2d 599, 601-602 (9th Cir. 1989); 14 Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 576 (9th Cir. 15 1988). 16 adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 17 S.Ct. 1420 (1971). "[S]uch inferences and conclusions as the [Commissioner] may 18 reasonably draw from the evidence" will also be upheld. Beane v. Richardson, 457 19 F.2d 758, 759 (9th Cir. 1972); Mark v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). 20 On review, the court considers the record as a whole, not just the evidence supporting 21 the decision of the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 22 1989); Thompson v. Schweiker, 665 F.2d 936, 939 (9th Cir. 1982). 23 "It means such relevant evidence as a reasonable mind might accept as It is the role of the trier of fact, not this court to resolve conflicts in evidence. 24 Richardson, 402 U.S. at 400. If evidence supports more than one rational 25 interpretation, the court must uphold the decision of the ALJ. Allen v. Heckler, 749 26 F.2d 577, 579 (9th Cir. 1984). 27 A decision supported by substantial evidence will still be set aside if the proper 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 2 Case 1:19-cv-03193-LRS ECF No. 15 filed 04/17/20 PageID.1066 Page 3 of 21 1 legal standards were not applied in weighing the evidence and making the decision. 2 Brawner v. Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 3 1987). 4 ISSUES 5 6 Plaintiff argues the ALJ erred in: 1) failing to find he has a “severe” mental 7 health impairment; 2) failing to find he meets or equals Listing 11.02 for epilepsy; 3) 8 failing to provide adequate reasons for discounting his symptom testimony; and 4) 9 failing to provide adequate reasons for discounting medical opinion evidence. 10 DISCUSSION 11 12 SEQUENTIAL EVALUATION PROCESS 13 The Social Security Act defines "disability" as the "inability to engage in any 14 substantial gainful activity by reason of any medically determinable physical or 15 mental impairment which can be expected to result in death or which has lasted or can 16 be expected to last for a continuous period of not less than twelve months." 42 17 U.S.C. § 1382c(a)(3)(A). The Act also provides that a claimant shall be determined 18 to be under a disability only if his impairments are of such severity that the claimant 19 is not only unable to do his previous work but cannot, considering his age, education 20 and work experiences, engage in any other substantial gainful work which exists in 21 the national economy. Id. 22 The Commissioner has established a five-step sequential evaluation process for 23 determining whether a person is disabled. 20 C.F.R. § 416.920; Bowen v. Yuckert, 24 482 U.S. 137, 140-42, 107 S.Ct. 2287 (1987). Step one determines if he is engaged 25 in substantial gainful activities. 26 416.920(a)(4)(I). 27 determines whether the claimant has a medically severe impairment or combination If he is, benefits are denied. 20 C.F.R. § If he is not, the decision-maker proceeds to step two, which 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 3 Case 1:19-cv-03193-LRS ECF No. 15 filed 04/17/20 PageID.1067 Page 4 of 21 1 of impairments. 20 C.F.R. § 416.920(a)(4)(ii). If the claimant does not have a severe 2 impairment or combination of impairments, the disability claim is denied. 3 impairment is severe, the evaluation proceeds to the third step, which compares the 4 claimant's impairment with a number of listed impairments acknowledged by the 5 Commissioner to be so severe as to preclude substantial gainful activity. 20 C.F.R. 6 § 416.920(a)(4)(iii); 20 C.F.R. § 404 Subpart P, App. 1. If the impairment meets or 7 equals one of the listed impairments, the claimant is conclusively presumed to be 8 disabled. If the impairment is not one conclusively presumed to be disabling, the 9 evaluation proceeds to the fourth step which determines whether the impairment 10 prevents the claimant from performing work he has performed in the past. If the 11 claimant is able to perform his previous work, he is not disabled. 20 C.F.R. § 12 416.920(a)(4)(iv). If the claimant cannot perform this work, the fifth and final step 13 in the process determines whether he is able to perform other work in the national 14 economy in view of his age, education and work experience. 15 416.920(a)(4)(v). If the 20 C.F.R. § 16 The initial burden of proof rests upon the claimant to establish a prima facie 17 case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th 18 Cir. 1971). The initial burden is met once a claimant establishes that a physical or 19 mental impairment prevents him from engaging in his previous occupation. The 20 burden then shifts to the Commissioner to show (1) that the claimant can perform 21 other substantial gainful activity and (2) that a "significant number of jobs exist in the 22 national economy" which claimant can perform. Kail v. Heckler, 722 F.2d 1496, 23 1498 (9th Cir. 1984). 24 25 ALJ'S FINDINGS 26 The ALJ found the following: 1) Plaintiff has “severe” medical impairments, 27 those being: right shoulder impairment and seizure disorder; 2) Plaintiff’s 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 4 Case 1:19-cv-03193-LRS ECF No. 15 filed 04/17/20 PageID.1068 Page 5 of 21 1 impairments do not meet or equal any of the impairments listed in 20 C.F.R. § 404 2 Subpart P, App. 1; 3) Plaintiff has the residual functional capacity (RFC) to perform 3 light work as defined in 20 C.F.R. § 416.967(b): he can lift and carry 20 pounds 4 occasionally and 10 pounds frequently; sit for six hours in an eight hour workday; 5 stand and walk six hours in an eight hour workday; can do unlimited pushing and 6 pulling; can frequently climb ramps and stairs; cannot climb ladders, ropes or 7 scaffolds; can frequently balance, stoop, kneel or crouch; can occasionally crawl; can 8 occasionally reach overhead with the dominant right upper extremity; has no 9 limitation in the non-dominant left upper extremity; capable of unlimited handling, 10 fingering and feeling; should avoid exposure to hazards and heights; and cannot 11 operate a motor vehicle; and 4) this RFC allows Plaintiff to perform other jobs 12 existing in significant numbers in the national economy as identified by the VE, 13 including furniture rental consultant, ironer, tanning salon attendant, and call out 14 operator. Accordingly, the ALJ concluded Plaintiff has not been disabled at any time 15 since February 26, 2015. 16 17 PHYSICAL IMPAIRMENTS 18 A. Right Shoulder Impairment 19 At the behest of the Commissioner, Plaintiff was examined by Beth Liu, M.D., 20 on July 6, 2015. The stated reason for the exam was “seizures; learning disability; 21 epilepsy.” Plaintiff complained of seizures and recurrent right shoulder dislocation 22 as a result of the seizures. Plaintiff described having “muscle spasm all day” with his 23 arm coming out of place when picking up stuff of little weight. 24 Plaintiff clarified that he suffers from “[d]aily jolts” and his shoulder “keeps popping 25 out of place even during my sleep.” (Id.). Plaintiff reported being able to shop, travel 26 without a companion, to use standard public transportation, to walk a block at a 27 reasonable pace on rough or uneven surfaces, to ambulate without using a device, to 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 5 (AR at p. 362). Case 1:19-cv-03193-LRS ECF No. 15 filed 04/17/20 PageID.1069 Page 6 of 21 1 use standard public transportation, to climb a few steps at a reasonable pace with the 2 use of a single hand rail, to care for personal hygiene, to prepare a simple meal and 3 feed himself, and to sort, handle, and use paper files. (AR at p. 363). 4 Examination of Plaintiff’s right shoulder revealed “slight tenderness” with a 5 range of motion of 95 degrees abduction, 30 degrees adduction, 50 degrees extension, 6 and 95 degrees flexion. Range of motion in the left shoulder was normal. (AR at p. 7 364). No muscle spasm was seen during the exam, nor was any significant muscle 8 atrophy or joint deformity seen on the exam. (Id.). 9 Dr. Liu diagnosed the Plaintiff with “[u]ncontrolled grand mal seizure” and 10 “[r]ecurrent right shoulder dislocation, secondary to grand mal seizure.” (AR at p. 11 364). According to her: Physical exam shows decreased ROM in right shoulder. Neurological exam finding is grossly normal. His MRI right shoulder with contrast down on 3/3/2014 showed Prominent Hill-Sachs defect as well as prominent osseous Bankart lesion involving the anterior-inferior labrum associated with the anterior-inferior aspect, with loss of the normal pear shape. The claimant’s conditions are chronic and ongoing. His seizure is uncontrolled and his right shoulder disability is permanent. He is on high doses [of] anti-seizure medications, but it seems [it is] not working for him. He needs further medication adjustment by [a] neurologist. The prognosis is fair if he gets further treatment for his condition. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (Id.). Dr. Liu opined the following regarding Plaintiff’s physical RFC: Based on [Plaintiff’s] current examination today, the medical history reviewed, previous medical records reviewed, and [Plaintiff’s] account of his limitations, he is able to lift or carry up to 10 lbs occasionally. He has no limitation in sitting, walking, or standing. He is able to perform most hand activities frequently except reaching overhead or others which he should perform[] occasionally. He is able to perform most postural activities frequently except climbing ladders or scaffolds which he should avoid perform[ing]. He may perform crawling occasionally. Environmental limitations include unprotected heights, operating [a] motor vehicle, and moving mechanical parts. In addition, he should avoid . . . working [alone] . . . . (AR at pp. 364-65)(emphasis added). ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 6 Case 1:19-cv-03193-LRS ECF No. 15 filed 04/17/20 PageID.1070 Page 7 of 21 1 The ALJ gave “some weight” to Dr. Liu’s opinion, but “based on the physical 2 exam results obtained in that exam, which were benign,” found “the [Plaintiff] is 3 limited to lifting or carrying 20 lbs instead of 10 lbs occasionally.” (AR at p. 22). 4 The 5 Reconsideration,” in which the State of Washington Disability Determination 6 Services (DDS) determined Plaintiff could lift and carry 20 pounds occasionally and 7 10 pounds frequently, was “consistent with the physical exam results and the 8 [Plaintiff’s] self-reported activities.” (Id.). The ALJ accorded “some weight” to the 9 state agency’s determination of a “light’ RFC when taken “[t]ogether with Dr. Liu’s 10 opinion that the [Plaintiff] has ‘no limitation in sitting, walking, or standing.’” (Id.). 11 The ALJ observed that the state agency did not identify Plaintiff as having a severe 12 shoulder impairment and concluded this appeared to be an error because the state 13 agency determination nonetheless “alludes to a right shoulder dislocation when 14 limiting overhead reaching to occasional on the right.” (Id.). ALJ found the April 2016 “Disability Determination Explanation, 15 It is settled law in the Ninth Circuit that in a disability proceeding, the opinion 16 of a licensed treating or examining physician or psychologist is given special weight 17 because of his/her familiarity with the claimant and his/her condition. If the treating 18 or examining physician's or psychologist’s opinion is not contradicted, it can be 19 rejected only for clear and convincing reasons. Reddick v. Chater, 157 F.3d 715, 725 20 (9th Cir. 1998); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). If contradicted, the 21 ALJ may reject the opinion if specific, legitimate reasons that are supported by 22 substantial evidence are given. Id. “[W]hen evaluating conflicting medical opinions, 23 an ALJ need not accept the opinion of a doctor if that opinion is brief, conclusory, 24 and inadequately supported by clinical findings.” Bayliss v. Barnhart, 427 F.3d 1211, 25 1216 (9th Cir. 2005). The opinion of a non-examining medical advisor/expert need 26 not be discounted and may serve as substantial evidence when it is supported by other 27 evidence in the record and consistent with the other evidence. Andrews v. Shalala, 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 7 Case 1:19-cv-03193-LRS 1 ECF No. 15 filed 04/17/20 PageID.1071 Page 8 of 21 53 F.3d 1035, 1041 (9th Cir. 1995). 2 The state agency reconsideration determination concluded Dr. Liu’s opinion 3 relied heavily on Plaintiff’s subjective report of his symptoms and limitations and 4 “the totality of the evidence does not support the opinion.” (AR at p. 83). It is, 5 however, not apparent that Dr. Liu disproportionately relied on Plaintiff’s report as 6 compared to her physical examination of the Plaintiff and her review of Plaintiff’s 7 medical history and previous medical records. 8 reconsideration determination offered no specific explanation of how “totality of the 9 evidence” did not support Dr. Liu’s opinion.1 In her decision, the ALJ did not specify 10 why Dr. Liu’s physical exam results were “benign” or how her opinion that he is 11 limited to lifting or carrying up to 10 pounds occasionally is inconsistent with his 12 self-reported activities. (AR at p. 22). During the hearing, Plaintiff testified his right 13 shoulder dislocates when he lifts about 25 pounds (AR at p. 45), but the ALJ did not 14 cite this testimony as a basis for discounting Plaintiff’s testimony or for discounting 15 Dr. Liu’s opinion. 16 dislocates at 25 pounds is not inconsistent with a restriction to lifting no more than 17 10 pounds occasionally. The ALJ did not offer “specific and legitimate” reasons for 18 discounting Dr. Liu’s opinion.2 Moreover, the state agency This is understandable as the fact Plaintiff’s right shoulder 19 20 1 Indeed, the state agency reconsideration determination did not list 21 22 Plaintiff’s right shoulder impairment as a “medically determinable impairment.” 23 (AR at pp. 77-78). 24 2 25 26 27 28 The court will assume the state agency reconsideration determination was from a medical source. It is a reasonable assumption as the court has familiarity with Paula Lantsberger, M.D., in other cases and will take judicial notice that she ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 8 Case 1:19-cv-03193-LRS ECF No. 15 filed 04/17/20 PageID.1072 Page 9 of 21 1 Likewise, the ALJ did not offer clear and convincing reasons for discounting 2 Plaintiff’s testimony regarding symptoms and limitations from his right shoulder 3 impairment. Where, as here, the Plaintiff has produced objective medical evidence 4 of an underlying impairment that could reasonably give rise to some degree of the 5 symptoms alleged, and there is no affirmative evidence of malingering, the ALJ’s 6 reasons for rejecting the Plaintiff’s testimony must be clear and convincing. Garrison 7 v. Colvin, 759 F.3d 95, 1014 (9th Cir. 2014); Burrell v. Colvin, 775 F.3d 1133, 1137 8 (9th Cir. 2014). Subjective testimony cannot be rejected solely because it is not 9 corroborated by objective medical findings, but medical evidence is a relevant factor 10 in determining the severity of a claimant’s impairments. Rollins v. Massanari, 261 11 F.3d 853, 857 (9th Cir. 2001). 12 Plaintiff’s limited work history cited by the ALJ (AR at p. 21) is not a clear and 13 convincing reason for disputing that he is currently limited to lifting and carrying 10 14 pounds occasionally as opined by Dr. Liu. As discussed above, the objective medical 15 evidence relied upon by Dr. Liu supports her opinion and the ALJ did not provide a 16 specific and legitimate reason for discounting her opinion. Accordingly, the medical 17 evidence is not a clear and convincing reason to dispute that Plaintiff is limited to 18 lifting and carrying 10 pounds occasionally. Finally, none of Plaintiff’s self-reported 19 activities as recited by the ALJ - shopping, traveling without a companion, using 20 public transportation, walking a block, climbing steps, caring for his personal 21 hygiene, working on cars, riding a bicycle, preparing meals, etc. (AR at pp. 21-22)- 22 constitute a clear and convincing reason for calling into question that Plaintiff is 23 limited to lifting and carrying 10 pounds occasionally as opined by Dr. Liu. 24 At the hearing, Plaintiff’s counsel asked the VE to assume Plaintiff was limited 25 to lifting 10 pounds occasionally. The VE testified that even with this limitation, 26 27 28 is a medical doctor in Spokane. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 9 Case 1:19-cv-03193-LRS ECF No. 15 filed 04/17/20 PageID.1073 Page 10 of 21 1 Plaintiff could perform work as a callout operator which is “sedentary” work.3 2 The VE indicated that 15,000 such jobs existed in the national economy. (AR at pp. 3 50-52). Plaintiff contends this does not constitute a “significant” number of jobs in 4 the national economy and therefore, the Commissioner failed to meet his/her Step 5 Five burden. 6 The Ninth Circuit has never set out a bright-line for what constitutes a 7 “significant number” of jobs. Gutierrez v. Commissioner of Social Security, 740 F.3d 8 519, 528 (9th Cir. 2014). In Gutierrez, the circuit found that 25,000 jobs met the 9 standard, although it presented a “close call.” In doing so, however, it cited an 8th 10 circuit case, Johnson v. Chater, 108 F.3d 178, 180 (8th Cir. 1997), which found 11 10,000 jobs met the standard. 740 F.3d at 528-29. At this juncture, the court declines 12 to declare 15,000 jobs in the national economy to not be a “significant number.”4 The 13 14 3 “Sedentary” work involves lifting no more than 10 pounds at a time and 15 16 17 occasionally lifting or carrying articles like docket files, ledgers, and small tools. 20 C.F.R. §416.967(a). 18 4 19 20 Using Gutierrez as a benchmark, three different district judges in the District of Oregon have issued rulings regarding what constitutes a “significant 21 22 23 number” of jobs in the national economy. In Cindy F. v. Berryhill, 367 F.Supp.2d 1195, 1220 (D. Or. 2019), the court found 7,400 jobs in the national economy did 24 25 26 27 28 not constitute a “significant number.” In Stephanie O. v. Berryhill, 2019 WL 2713234 at *7 (D. Or. 2019), the court found 17,408 jobs did constitute a “significant number.” In Nikola G. v. Commissioner, Social Security ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 10 Case 1:19-cv-03193-LRS ECF No. 15 filed 04/17/20 PageID.1074 Page 11 of 21 1 court will not, however, preclude Plaintiff from reasserting this argument should he 2 be before the court again following further administrative proceedings necessitated 3 by this court’s remand of this matter, as discussed infra. 4 5 B. Epilepsy 6 The ALJ found that Plaintiff’s condition does not meet or equal Listing 11.02 7 for Epilepsy, concluding “its requirements are not met.” (AR at p. 19). 8 The medical record contains a detailed description of Plaintiff’s typical seizure 9 as required by Listing 11.02. Laura L. Hershkowitz, D.O., conducted a four day 10 continuous EEG monitoring study of the Plaintiff in February 2015. (AR at pp. 591- 11 93). The ALJ’s decision did not refer to this study, instead citing cranial nerve 12 assessments conducted in February and April 2016, which were within normal limits. 13 (AR at p. 21) 14 In evaluating the frequency of seizures for the purpose of determining whether 15 Listing 11.02 is met or equaled, the Commissioner considers “adherence to prescribed 16 treatment.” According to 20 C.F.R. §404 Subpt. P, App. 2, Listing 11.00 H. 4. d.: 17 18 19 20 21 22 We do not count seizures that occur during a period when you are not adhering to prescribed treatment without a good reason. When we determine that you had good reason for not adhering to prescribed treatment, we will consider your physical, mental, educational, and communicative limitations (including any language barriers). We will consider you to have good reason for not following prescribed treatment if, for example, the treatment is very risky for you due to its consequences or unusual nature, of if you are unable to afford prescribed treatment that you are willing to accept, but for which no free community resources are available. 23 The ALJ noted there is evidence indicating Plaintiff has failed to take his anti- 24 seizure medications and his medication regimen “seems to be working when 25 26 27 28 Administration, 2019 WL 6114534 at *5 (D. Or. 2019), the court found 8,657 jobs did not constitute a “significant number.” ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 11 Case 1:19-cv-03193-LRS ECF No. 15 filed 04/17/20 PageID.1075 Page 12 of 21 1 compliant” as reported by Richard Sloop, M.D., in September 2017. (AR at p. 21).5 2 Although the ALJ did this in the context of analyzing whether Plaintiff’s symptoms 3 and limitations are as severe as claimed by him, and not within the framework of 4 whether Listing 11.02 is met or equaled, this is inconsequential. Lewis v. Apfel, 236 5 F.3d 503, 513 (9th Cir. 2001)(ALJ required only to discuss and evaluate evidence that 6 supports his or her conclusion and does not require the ALJ to do so under a 7 particular heading). 8 What the ALJ did not analyze, however, is whether there was good cause for 9 Plaintiff’s non-compliance. The ALJ failed to consider potentially valid reasons why 10 Plaintiff was not always compliant with his medication regimen. Plaintiff indicated 11 he needed reminders to take his medication and there is evidence in the record that 12 he relied upon his girlfriend for treatment (AR at pp. 201, 216 and 582), perhaps in 13 part because of cognitive limitations. See discussion infra. There is also evidence 14 15 16 Plaintiff’s girlfriend told Dr. Sloop in July 2016 that Plaintiff “tends not to 17 take his meds.” (AR at p. 698). Plaintiff visited the Yakama Indian Health Center 5 18 19 20 in December 2015 for refill of seizure medications. The doctor ordered Plaintiff one month of medication and commented it was “[f]airly clear that he is not 21 22 23 remotely adherent to his medication regimen.” (AR at p. 881). There are a number of other references in the record to Plaintiff not taking his medication 24 25 26 27 28 (AR. at pp. 772, 775, 803, 887 and 909). In August 2014, Dr. Hershkowitz reported there was “an element of difficult [medication] compliance, but this seems to be better, and he is still having seizures.” (AR at p. 335). ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 12 Case 1:19-cv-03193-LRS ECF No. 15 filed 04/17/20 PageID.1076 Page 13 of 21 1 in the record that Plaintiff’s living situation has not been conducive to compliance 2 (e.g., reliance on others for transportation; living in a van for a period of time; 3 needing to establish care with providers in new locations). (AR at pp. 42-43, 203, 4 217, 368, 441, 495, 547, 568, 640, 645 and 650). 5 On remand, it will be necessary for the Commissioner to consider at Step Three 6 the extent to which Plaintiff’s failure to adhere to prescribed treatment has impacted 7 the frequency of his seizures and whether there was good cause for that failure.6 The 8 absence of good cause would be a valid reason for discounting Plaintiff’s testimony 9 about the severity of his symptoms and his limitations. 10 11 MENTAL IMPAIRMENTS 12 Although Plaintiff asserted a learning disability in his application for benefits 13 as acknowledged by the Commissioner in both his initial and reconsideration 14 evaluation of Plaintiff’s claim for disability (AR at p. 55 and p. 70), the 15 Commissioner did not specifically consider “Intellectual disability” under Listing 16 12.05. Only “Affective Disorders” under Listing 12.04 was considered. 17 The non-examining state agency psychologists who reviewed the record, 18 Patricia Kraft, Ph.D., and John F. Robinson, Ph.D., concluded Plaintiff has a non- 19 severe affective disorder resulting in only “mild” restriction of activities of daily 20 living, “mild” difficulties in social functioning, “mild” difficulties in maintaining 21 concentration, persistence or pace, with no repeated episodes of decompensation. 22 23 6 SSR 82-59, rescinded effective October 29, 2018, after the 24 25 26 27 28 Commissioner’s final decision of April 3, 2018, does not apply as there has not yet been a determination that Plaintiff’s epilepsy is a “disabling impairment” which is amenable to treatment that could be expected to restore his ability to work. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 13 Case 1:19-cv-03193-LRS ECF No. 15 filed 04/17/20 PageID.1077 Page 14 of 21 1 (AR at pp. 60-62; 77-79). The psychologists pointed out that Plaintiff “[a]ppears to 2 have a cognitive impairment” and observed that his girlfriend said he could not read 3 or write, but also asserted that “[r]ecords indicate . . . he is able to read and write . . 4 . he is independent with ADLs [Activities of Daily Living] and handling funds.” (AR 5 at p. 61 and p. 78). 6 In his decision, the ALJ agreed that Plaintiff’s affective disorder is “non- 7 severe” because it causes no more than “mild” limitation in any of the functional 8 areas, citing evidence regarding Plaintiff’s participation in social activities, his 9 romantic and family relationships, and his independence in performing daily living 10 activities. (AR at p. 18). The ALJ specifically accorded “some weight” to Dr. 11 Robinson’s opinion as it was “consistent with the [Plaintiff’s] social activities of 12 attending birthday parties and community parties . . . while alleging disabling mental 13 impairments.” (AR at p. 22). 14 On September 14, 2015, Plaintiff underwent a consultative psychological 15 examination by Amy Ford, Psy. D., at the behest of the Commissioner. Plaintiff 16 identified seizures and his shoulder impairment as the chief reason for his disability. 17 (AR at p. 367). Dr. Ford reviewed Plaintiff’s records from Greater Lakes Mental 18 Health where he was assessed on January 27, 2015, and “given a provisional 19 diagnosis of Major Depressive Disorder, single episode, moderate.” (AR at p. 313). 20 The therapist at Greater Lakes Mental Health assigned him a Global Assessment 21 Functioning (GAF) score of 45 at that time because of “[s]erious problems with 22 occupational and social functioning; chronically unemployed, problems with 23 substance abuse.” Defendant was discharged from Greater Lakes Mental Health on 24 February 10, 2015, when he failed to return for a session with the therapist following 25 the intake assessment on January 27. (AR at p. 317). 26 Plaintiff told Dr. Ford he left school in 9th grade, that school was hard for him, 27 he struggled with spelling and reading, and he was in special education. (AR at p. 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 14 Case 1:19-cv-03193-LRS ECF No. 15 filed 04/17/20 PageID.1078 Page 15 of 21 1 368). Plaintiff was unable to answer certain questions posed by Dr. Ford, leading her 2 to conclude “[h]is fund of knowledge was fair to poor and his IQ is estimated to be 3 below average based on educational history.” (AR at p. 369). Plaintiff was unable 4 to do Serial 7s and Serial 3s, and he could not spell the words “World” or “Girl.” Dr. 5 Ford concluded his concentration “appears poor.” (Id.). Plaintiff told Dr. Ford he did 6 not know what he would do if he were in a crowded movie theater and was the first 7 one to see smoke and fire. Dr. Ford concluded Plaintiff’s “judgment is impaired by 8 low intelligence and low interest in life.” (Id.). 9 Plaintiff described his mood as depressed and Dr. Ford wrote that he was 10 “actively suicidal.” (AR at p. 369). Plaintiff indicated he experiences visual and 11 auditory hallucinations. 12 including cleaning up, doing the dishes, cleaning around the house, making meals and 13 “breakfast for everyone.” (AR at p. 370). He watches television and visits with 14 family and friends. (Id.). He stated he enjoys being with his girlfriend’s kids and 15 visiting with her father and brother. (Id.). (Id.). Plaintiff described his daily living activities as 16 Dr. Ford diagnosed the Plaintiff with “Major Depressive Disorder, Moderate 17 to Severe (actively suicidal).” Dr. Ford indicated that Plaintiff had been “struggling 18 with . . . depressive disorder for several years with limited treatment.” (AR at p. 370). 19 She opined that he needed more routine mental health care and to adhere to . . . 20 recommendations for routine treatment.” (Id.). She opined that his ability to reason 21 “is fair but limited” by his educational level; his understanding and memory “is 22 impaired and fair to poor;” his ability to sustain concentration and persistence “is 23 impaired due to chronic pain and depression;” his ability to interact socially “is 24 limited by his pain and interest in life;” and his ability to adapt and be flexible “is 25 limited by his pain and hopelessness.” (Id.). Dr. Ford stated to please let her know 26 if she could provide any further information (Id.), but the Commissioner did not take 27 her up on that offer. 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 15 Case 1:19-cv-03193-LRS ECF No. 15 filed 04/17/20 PageID.1079 Page 16 of 21 1 The ALJ accorded “very limited weight” to Dr. Ford’s opinions because she 2 did not opine that Plaintiff “has specific vocational limitations resulting from the 3 ‘impaired’ abilities.” (AR at p. 22). The ALJ wrote “[t]here are many jobs in the 4 national economy that could still be performed with ‘fair to poor’ understanding and 5 memory and ‘impaired’ concentration and persistence” (AR at p. 22), although such 6 limitations were never presented to the VE in hypothetical questioning. The ALJ 7 further wrote that Plaintiff had “retained sufficient concentration and persistence to 8 work on cars, make breakfast for ‘everyone’ in his household . . . as well as attend 9 birthday parties and community parties . . . .” (AR at pp. 22-23). 10 A “severe” impairment is one which significantly limits physical or mental 11 ability to do basic work-related activities. 20 C.F.R. § 416.920(c). It must result 12 from anatomical, physiological, or psychological abnormalities which can be shown 13 by medically acceptable clinical and laboratory diagnostic techniques. It must be 14 established by medical evidence consisting of signs, symptoms, and laboratory 15 findings, not just the claimant's statement of symptoms. 20 C.F.R. § 416.921. 16 Step two is a de minimis inquiry designed to weed out non-meritorious claims 17 at an early stage in the sequential evaluation process. Smolen v. Chater, 80 F.3d 18 1273, 1290 (9th Cir. 1996), citing Bowen v. Yuckert, 482 U.S. 137, 153-54 (1987) 19 ("[S]tep two inquiry is a de minimis screening device to dispose of groundless 20 claims"). "[O]nly those claimants with slight abnormalities that do not significantly 21 limit any basic work activity can be denied benefits" at step two. Bowen, 482 U.S. 22 at 158 (concurring opinion). "Basic work activities" are the abilities and aptitudes to 23 do most jobs, including: 1) physical functions such as walking, standing, sitting, 24 lifting, pushing, pulling, reaching, carrying, or handling; 2) capacities for seeing, 25 hearing, and speaking; 3) understanding, carrying out, and remembering simple 26 instructions; 4) use of judgment; 5) responding appropriately to supervision, co- 27 workers and usual work situations; and 6) dealing with changes in a routine work 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 16 Case 1:19-cv-03193-LRS 1 2 ECF No. 15 filed 04/17/20 PageID.1080 Page 17 of 21 setting. 20 C.F.R. § 416.922(b). The Commissioner has stated that “[i]f an adjudicator is unable to determine 3 clearly the effect of an impairment or combination of impairments on the individual’s 4 ability to do basic work activities, the sequential evaluation should not end with the 5 not severe evaluation step.” Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005), 6 citing S.S.R. No. 85-28 (1985). An ALJ may find that a claimant lacks a medically 7 severe impairment or combination of impairments only when his conclusion is 8 “clearly established by medical evidence.” Id. 9 The ALJ did not consider whether Plaintiff had a medically determinable 10 learning disability, let alone whether medical evidence clearly establishes it to be 11 “severe.” 12 diagnosis, the functional limitations opined by her suggested such a condition existed 13 and had consequences for Plaintiff’s ability to work.7 Plaintiff alleged learning 14 disability as an impairment and therefore, the ALJ had a duty to develop the medical 15 evidence regarding this impairment, particularly in light of Dr. Ford’s report. While Dr. Ford did not include a learning disability as part of her 16 The ALJ has a basic duty to inform himself about facts relevant to his decision. 17 Heckler v. Campbell, 461 U.S. 458, 471 n. 1, 103 S.Ct. 1952 (1983). The ALJ’s duty 18 to develop the record exists even when the claimant is represented by counsel. 19 Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). The duty is triggered by 20 21 7 22 23 Dr. Ford is not the only one to suggest the existence of a learning disorder. (August 1, 2012 provisional diagnosis of Learning Disorder NOS by Dana 24 25 26 27 28 Harmon, Ph.D. at AR, p. 662; August 29, 2014 and February 2, 2015 notes from Dr. Hershkowitz , AR, pp. 335 and 582; March 15, 2015 learning difficulty diagnosis by J. Scott Taylor, M.D. at AR, p. 572). ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 17 Case 1:19-cv-03193-LRS ECF No. 15 filed 04/17/20 PageID.1081 Page 18 of 21 1 ambiguous or inadequate evidence in the record and a specific finding of ambiguity 2 or inadequacy by the ALJ is not necessary. McLeod v. Astrue, 640 F.3d 881, 885 (9th 3 Cir. 2011). 4 The ALJ also had a duty to develop the medical evidence to ascertain the 5 “severity” of Plaintiff’s affective disorder (depression). The medical evidence is 6 extremely sparse in this regard and so it was incumbent upon the ALJ to follow up 7 with Dr. Ford or another psychologist regarding the extent of Plaintiff’s limitations 8 from his affective disorder, rather than simply accepting the opinions of the non- 9 examining psychologists that Plaintiff had no more than “mild” limitations in any 10 functional area. It was not a legitimate reason to discount Dr. Ford’s opinion because 11 she was not more specific regarding Plaintiff’s vocational limitations. Nor was it a 12 legitimate reason to discount her opinion because the Plaintiff indicated he performed 13 certain activities around his house and engaged in certain social activities with family 14 and friends. 15 limitations are no more than “mild,” particularly in a workplace environment which 16 is the relevant question. An impairment is not severe “if it does not significantly limit 17 . . . physical or mental ability to do basic work activities.” 20 C.F.R. §416.922(a). 18 (Emphasis added). These activities do not necessarily mean his mental functional 19 If Plaintiff suffers from a “severe” mental impairment, it certainly was not a 20 harmless error, considering the ALJ found Plaintiff suffered from only “severe” 21 physical impairments and did not present any mental limitations to the VE during 22 hypothetical questioning. 23 24 REMAND 25 Social security cases are subject to the ordinary remand rule which is that when 26 “the record before the agency does not support the agency action, . . . the agency has 27 not considered all the relevant factors, or . . . the reviewing court simply cannot 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 18 Case 1:19-cv-03193-LRS ECF No. 15 filed 04/17/20 PageID.1082 Page 19 of 21 1 evaluate the challenged agency action on the basis of the record before it, the proper 2 course, except in rare circumstances, is to remand to the agency for additional 3 investigation or explanation.” Treichler v. Commissioner of Social Security 4 Administration, 775 F.3d 1090, 1099 (9th Cir. 2014), quoting Fla. Power & Light Co. 5 v. Lorion, 470 U.S. 729, 744, 105 S.Ct. 1598 (1985). 6 In “rare circumstances,” the court may reverse and remand for an immediate 7 award of benefits instead of for additional proceedings. Id., citing 42 U.S.C. §405(g). 8 Three elements must be satisfied in order to justify such a remand. The first element 9 is whether the “ALJ has failed to provide legally sufficient reasons for rejecting 10 evidence, whether claimant testimony or medical opinion.” Id. at 1100, quoting 11 Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). If the ALJ has so erred, the 12 second element is whether there are “outstanding issues that must be resolved before 13 a determination of disability can be made,” and whether further administrative 14 proceedings would be useful. Id. at 1101, quoting Moisa v. Barnhart, 367 F.3d 882, 15 887 (9th Cir. 2004). “Where there is conflicting evidence, and not all essential factual 16 issues have been resolved, a remand for an award of benefits is inappropriate.” Id. 17 Finally, if it is concluded that no outstanding issues remain and further proceedings 18 would not be useful, the court may find the relevant testimony credible as a matter of 19 law and then determine whether the record, taken as a whole, leaves “not the slightest 20 uncertainty as to the outcome of [the] proceedings.” Id., quoting NLRB v. Wyman- 21 Gordon Co., 394 U.S. 759, 766 n. 6 (1969). Where all three elements are satisfied- 22 ALJ has failed to provide legally sufficient reasons for rejecting evidence, there are 23 no outstanding issues that must be resolved, and there is no question the claimant is 24 disabled- the court has discretion to depart from the ordinary remand rule and remand 25 for an immediate award of benefits. Id. But even when those “rare circumstances” 26 exist, “[t]he decision whether to remand a case for additional evidence or simply to 27 award benefits is in [the court’s] discretion.” 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 19 Id. at 1102, quoting Swenson v. Case 1:19-cv-03193-LRS 1 ECF No. 15 filed 04/17/20 PageID.1083 Page 20 of 21 Sullivan, 876 F.2d 683, 689 (9th Cir. 1989). 2 The ALJ failed to offer legally sufficient reasons for rejecting Dr. Liu’s opinion 3 that Plaintiff is limited to lifting and carrying 10 pounds occasionally as a result of 4 his right shoulder impairment. The ALJ erred in not analyzing whether there was 5 good cause for Plaintiff’s non-compliance with his medication regimen which is 6 relevant to the determination of whether Plaintiff’s epilepsy meets or equals Listing 7 11.02. 8 disability impairment. Finally, the ALJ erred in failing to consider Plaintiff’s alleged learning 9 There are outstanding issues that must be resolved before a determination of 10 disability can be made and further administrative proceedings would be useful in 11 resolving those issues. The ALJ will need to determine the frequency of Plaintiff’s 12 seizures. 13 performed by Dr. Hershkowitz which the ALJ did not address. The ALJ may deem 14 it necessary to enlist the services of a medical expert (ME) to assist in the inquiry 15 regarding the frequency of seizures and the impact of medication non-compliance. 16 The ALJ will then need to analyze and determine whether there was good cause for 17 Plaintiff’s non-compliance with his anti-seizure medication regimen. Related to that 18 issue is the need for the ALJ to order another consultative psychological examination 19 of the Plaintiff, to include intellectual testing to determine whether Plaintiff has a 20 learning disability impairment and if so, whether it is “severe” and the extent to which 21 it limits the Plaintiff’s mental RFC. 22 examination should also be for the purpose of ascertaining the “severity” of Plaintiff’s 23 affective disorder and resulting limitations. This will require revisiting the record, in particular the EEG testing This additional consultative psychological 24 With regard to Plaintiff’s physical RFC, the record establishes Plaintiff is 25 limited to lifting and carrying 10 pounds occasionally and therefore, any additional 26 questioning of a VE should include that lifting and carrying capacity as a given. 27 The extent to which Plaintiff’s testimony about symptoms and/or limitations 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 20 Case 1:19-cv-03193-LRS ECF No. 15 filed 04/17/20 PageID.1084 Page 21 of 21 1 arising from his epilepsy, affective disorders and any learning disability is supported 2 by the record, remains an open question on remand. 3 CONCLUSION 4 5 6 Plaintiff’s Motion For Summary Judgment (ECF No. 11) is GRANTED and Defendant’s Motion For Summary Judgment (ECF No. 12) is DENIED. 7 Pursuant to sentence four of 42 U.S.C. §405(g), the Commissioner's decision 8 is REVERSED and REMANDED for further administrative proceedings consistent 9 with this order. 10 IT IS SO ORDERED. The District Executive shall enter judgment 11 accordingly, forward copies of the judgment and this order to counsel of record, and 12 close the case. 13 DATED this 17th day of April, 2020. 14 15 16 17 LONNY R. SUKO Senior United States District Judge 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 21

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