Torres v. Kijakazi, No. 1:2020cv03146 - Document 24 (E.D. Wash. 2022)
Court Description: ORDER GRANTING 21 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING 22 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. This matter is REVERSED and REMANDED to the Commissioner of Social Security for further proceedings consistent with this recommendation pursuant to sentence four of 42 U.S.C. § 405(g). This file is CLOSED. Signed by Judge Mary K. Dimke. (CLP, Case Administrator)
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Torres v. Kijakazi Doc. 24 Case 1:20-cv-03146-MKD ECF No. 24 filed 02/25/22 PageID.1331 Page 1 of 28 1 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 2 Feb 25, 2022 SEAN F. MCAVOY, CLERK 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 BULMARO T.,1 8 No. 1:20-cv-03146-MKD Plaintiff, 9 vs. 10 KILOLO KIJAKAZI, ACTING COMMISSIONER OF SOCIAL 11 SECURITY,2 12 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ECF Nos. 21, 22 Defendant. 13 14 1 To protect the privacy of plaintiffs in social security cases, the undersigned 15 identifies them by only their first names and the initial of their last names. See 16 LCivR 5.2(c). 17 2 Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 18 2021. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Kilolo 19 Kijakazi is substituted for Andrew M. Saul as the defendant in this suit. No further 20 action need be taken to continue this suit. See 42 U.S.C. § 405(g). ORDER - 1 Dockets.Justia.com Case 1:20-cv-03146-MKD 1 ECF No. 24 filed 02/25/22 PageID.1332 Page 2 of 28 Before the Court are the parties’ cross-motions for summary judgment. ECF 2 Nos. 21, 22. The Court, having reviewed the administrative record and the parties’ 3 briefing, is fully informed. For the reasons discussed below, the Court grants 4 Plaintiff’s motion, ECF No. 21, and denies Defendant’s motion, ECF No. 22. 5 6 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. § 405(g). 7 8 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 9 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 10 limited; the Commissioner’s decision will be disturbed “only if it is not supported 11 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 12 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 13 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 14 (quotation and citation omitted). Stated differently, substantial evidence equates to 15 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 16 citation omitted). In determining whether the standard has been satisfied, a 17 reviewing court must consider the entire record as a whole rather than searching 18 for supporting evidence in isolation. Id. 19 In reviewing a denial of benefits, a district court may not substitute its 20 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, ORDER - 2 Case 1:20-cv-03146-MKD ECF No. 24 filed 02/25/22 PageID.1333 Page 3 of 28 1 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 2 rational interpretation, [the court] must uphold the ALJ’s findings if they are 3 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 4 F.3d 1104, 1111 (9th Cir. 2012), superseded on other grounds by 20 C.F.R. §§ 5 404.1502(a), 416.920(a). Further, a district court “may not reverse an ALJ’s 6 decision on account of an error that is harmless.” Id. An error is harmless “where 7 it is inconsequential to the [ALJ’s] ultimate nondisability determination.” Id. at 8 1115 (quotation and citation omitted). The party appealing the ALJ’s decision 9 generally bears the burden of establishing that it was harmed. Shinseki v. Sanders, 10 556 U.S. 396, 409-10 (2009). 11 12 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 13 the meaning of the Social Security Act. First, the claimant must be “unable to 14 engage in any substantial gainful activity by reason of any medically determinable 15 physical or mental impairment which can be expected to result in death or which 16 has lasted or can be expected to last for a continuous period of not less than twelve 17 months.” 42 U.S.C. § 423(d)(1)(A). Second, the claimant’s impairment must be 18 “of such severity that he is not only unable to do his previous work[,] but cannot, 19 considering his age, education, and work experience, engage in any other kind of 20 ORDER - 3 Case 1:20-cv-03146-MKD ECF No. 24 filed 02/25/22 PageID.1334 Page 4 of 28 1 substantial gainful work which exists in the national economy.” 42 U.S.C. § 2 423(d)(2)(A). 3 The Commissioner has established a five-step sequential analysis to 4 determine whether a claimant satisfies the above criteria. See 20 C.F.R. § 5 404.1520(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s 6 work activity. 20 C.F.R. § 404.1520(a)(4)(i). If the claimant is engaged in 7 “substantial gainful activity,” the Commissioner must find that the claimant is not 8 disabled. 20 C.F.R. § 404.1520(b). 9 If the claimant is not engaged in substantial gainful activity, the analysis 10 proceeds to step two. At this step, the Commissioner considers the severity of the 11 claimant’s impairment. 20 C.F.R. § 404.1520(a)(4)(ii). If the claimant suffers 12 from “any impairment or combination of impairments which significantly limits 13 [his or her] physical or mental ability to do basic work activities,” the analysis 14 proceeds to step three. 20 C.F.R. § 404.1520(c). If the claimant’s impairment 15 does not satisfy this severity threshold, however, the Commissioner must find that 16 the claimant is not disabled. Id. 17 At step three, the Commissioner compares the claimant’s impairment to 18 severe impairments recognized by the Commissioner to be so severe as to preclude 19 a person from engaging in substantial gainful activity. 20 C.F.R. § 20 404.1520(a)(4)(iii). If the impairment is as severe or more severe than one of the ORDER - 4 Case 1:20-cv-03146-MKD ECF No. 24 filed 02/25/22 PageID.1335 Page 5 of 28 1 enumerated impairments, the Commissioner must find the claimant disabled and 2 award benefits. 20 C.F.R. § 404.1520(d). 3 If the severity of the claimant’s impairment does not meet or exceed the 4 severity of the enumerated impairments, the Commissioner must pause to assess 5 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 6 defined generally as the claimant’s ability to perform physical and mental work 7 activities on a sustained basis despite his or her limitations, 20 C.F.R. § 8 404.1545(a)(1), is relevant to both the fourth and fifth steps of the analysis. 9 At step four, the Commissioner considers whether, in view of the claimant’s 10 RFC, the claimant is capable of performing work that he or she has performed in 11 the past (past relevant work). 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant is 12 capable of performing past relevant work, the Commissioner must find that the 13 claimant is not disabled. 20 C.F.R. § 404.1520(f). If the claimant is incapable of 14 performing such work, the analysis proceeds to step five. 15 At step five, the Commissioner considers whether, in view of the claimant’s 16 RFC, the claimant is capable of performing other work in the national economy. 17 20 C.F.R. § 404.1520(a)(4)(v). In making this determination, the Commissioner 18 must also consider vocational factors such as the claimant’s age, education, and 19 past work experience. Id. If the claimant is capable of adjusting to other work, the 20 Commissioner must find that the claimant is not disabled. 20 C.F.R. § ORDER - 5 Case 1:20-cv-03146-MKD ECF No. 24 filed 02/25/22 PageID.1336 Page 6 of 28 1 404.1520(g)(1). If the claimant is not capable of adjusting to other work, analysis 2 concludes with a finding that the claimant is disabled and is therefore entitled to 3 benefits. Id. 4 The claimant bears the burden of proof at steps one through four above. 5 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 6 step five, the burden shifts to the Commissioner to establish that 1) the claimant is 7 capable of performing other work; and 2) such work “exists in significant numbers 8 in the national economy.” 20 C.F.R. § 404.1560(c)(2); Beltran v. Astrue, 700 F.3d 9 386, 389 (9th Cir. 2012). 10 11 PROCEDURAL HISTORY AND THE ALJ’S FINDINGS On November 19, 2013, Plaintiff applied for Title II disability insurance 12 benefits alleging a disability onset date of March 23, 2012. Tr. 71, 176-80, 546. 13 The application was denied initially and on reconsideration. Tr. 98-104, 106-10. 14 Plaintiff appeared before an administrative law judge (ALJ) on January 26, 2016. 15 Tr. 42-70. On February 26, 2016, the ALJ denied Plaintiff’s claim. Tr. 19-41, 16 608-30. On April 26, 2017, the Appeals Council denied review. Tr. 1-8, 631-38. 17 Plaintiff appealed to the district court. On February 21, 2018, the district court 18 granted the parties’ stipulated motion for remand and remanded the matter back to 19 an ALJ for de novo hearing and a new decision, including further evaluation of 20 Plaintiff’s English language proficiency and his residual functional capacity. Tr. ORDER - 6 Case 1:20-cv-03146-MKD ECF No. 24 filed 02/25/22 PageID.1337 Page 7 of 28 1 647-48. Plaintiff appeared before an ALJ on June 10, 2020.3 Tr. 568-94. On June 2 22, 2020, the ALJ denied Plaintiff’s claim. Tr. 540-67. 3 4 5 3 On September 21, 2017, Plaintiff also filed an application for Title XVI benefits, 6 and no decision had been made by the field office as of the 2020 hearing. See Tr. 7 576, 857, 661. In the 2018 Appeals Council Order vacating the previous ALJ’s 8 decision and remanding the Title II claim back to an ALJ to comply with this 9 Court’s 2018 remand order, the Appeals Council also ordered the ALJ to “ensure 10 the field office is notified that the case is pending and requires an initial 11 determination” on the 2017 Title XVI claim. Tr. 661. Despite receiving this 12 information in 2018, it appears no action was taken by the hearing office or the 13 field office and the local field office had not adjudicated the Title XVI claim by 14 December 2019; a hearing scheduled for December 19, 2019 was adjourned to give 15 the field office more time to expedite Plaintiff’s Title XVI claim and, if necessary, 16 consolidate and escalate Plaintiff’s Title XVI application to the hearing level. See 17 Tr. 596-07, 601-05, 857. Subsequently, the ALJ explained that due to COVID-19 18 office closures DDS and the field office were unable to decide the Title XVI claim; 19 a June 2020 hearing was held on the Title II matter only, and it is the only matter 20 before the Court. See Tr. 546-47, 576-77, 603-05. ORDER - 7 Case 1:20-cv-03146-MKD 1 ECF No. 24 filed 02/25/22 PageID.1338 Page 8 of 28 Initially, the ALJ found that Plaintiff’s date last insured was September 30, 2 2013.4 Tr. 549. At step one of the sequential evaluation process, the ALJ found 3 Plaintiff had not engaged in substantial gainful activity since his alleged onset date 4 of March 23, 2012 through his date last insured. Id. At step two, the ALJ found 5 that through the date last insured Plaintiff had the following severe impairment: 6 chronic myelogenous leukemia. Tr. 549. 7 At step three, the ALJ found Plaintiff did not have an impairment or 8 combination of impairments that met or medically equaled the severity of a listed 9 impairment through the date last insured. Tr. 552. The ALJ then concluded that, 10 through the date last insured, Plaintiff had the RFC to perform light work with the 11 following limitations: 12 [H]e could occasionally lift a maximum of 20 pounds, frequently lift/carry 20 pounds; he could stand and/or walk for six hours in an eight-hour workday, and sit for six hours in an eight-hour workday; he required avoidance of concentrated exposure to extreme cold or heat. 13 14 Id. 15 At step four, the ALJ found Plaintiff was unable to perform any past relevant 16 work through the date last insured. Tr. 558. At step five, the ALJ found that, 17 through the date last insured, considering Plaintiff’s age, education, work 18 19 4 To obtain disability insurance benefits, Plaintiff must demonstrate he was 20 disabled before his last insured date. 42 U.S.C. § 423(c); 20 C.F.R. § 404.1520. ORDER - 8 Case 1:20-cv-03146-MKD ECF No. 24 filed 02/25/22 PageID.1339 Page 9 of 28 1 experience, ability to communicate in English, RFC, and testimony from the 2 vocational expert, there were jobs that existed in significant numbers in the 3 national economy that Plaintiff could perform, such as production assembler, 4 electronics bench worker, and packager. Tr. 558-59. Therefore, the ALJ 5 concluded Plaintiff was not under a disability, as defined in the Social Security 6 Act, from the alleged onset date of March 23, 2012 through September 30, 2013, 7 the date last insured. Tr. 560. 8 Per 20 C.F.R. § 404.984, the ALJ’s decision following this Court’s prior 9 remand became the Commissioner’s final decision for purposes of judicial review. 10 11 ISSUES Plaintiff seeks judicial review of the Commissioner’s final decision denying 12 him disability insurance benefits under Title II of the Social Security Act. Plaintiff 13 raises the following issues for review: 14 1. Whether the ALJ conducted a proper step-three analysis; 15 2. Whether the ALJ properly evaluated the medical opinion evidence; 16 3. Whether the ALJ properly evaluated Plaintiff’s symptom claims; 17 4. Whether the ALJ conducted a proper step-two analysis. 18 ECF No. 21 at 2. 19 20 ORDER - 9 Case 1:20-cv-03146-MKD 1 2 3 ECF No. 24 filed 02/25/22 PageID.1340 Page 10 of 28 DISCUSSION A. Step Three Plaintiff contends the ALJ erred by not properly assessing Listing 13.06B. 4 ECF No. 21 at 2, 5-9. At step three, the ALJ must determine if a claimant’s 5 impairments meet or equal a listed impairment. 20 C.F.R. § 404.1520(a)(4)(iii). 6 The Listing of Impairments “describes for each of the major body systems 7 impairments [which are considered] severe enough to prevent an individual from 8 doing any gainful activity, regardless of his or her age, education or work 9 experience.” 20 C.F.R. § 404.1525. “Listed impairments are purposefully set at a 10 high level of severity because ‘the listings were designed to operate as a 11 presumption of disability that makes further inquiry unnecessary.’” Kennedy v. 12 Colvin, 738 F.3d 1172, 1176 (9th Cir. 2013) (citing Sullivan v. Zebley, 493 U.S. 13 521, 532 (1990)). “Listed impairments set such strict standards because they 14 automatically end the five-step inquiry, before residual functional capacity is even 15 considered.” Kennedy, 738 F.3d at 1176. If a claimant meets the listed criteria for 16 disability, she will be found to be disabled. 20 C.F.R. § 404.1520(a)(4)(iii). 17 “To meet a listed impairment, a claimant must establish that he or she meets 18 each characteristic of a listed impairment relevant to his or her claim.” Tackett, 19 180 F.3d at 1099 (emphasis in original); 20 C.F.R. § 404.1525(d). “To equal a 20 listed impairment, a claimant must establish symptoms, signs and laboratory ORDER - 10 Case 1:20-cv-03146-MKD ECF No. 24 filed 02/25/22 PageID.1341 Page 11 of 28 1 findings ‘at least equal in severity and duration’ to the characteristics of a relevant 2 listed impairment . . .” Tackett, 180 F.3d at 1099 (emphasis in original) (quoting 3 20 C.F.R. § 404.1526(a)). “If a claimant suffers from multiple impairments and 4 none of them individually meets or equals a listed impairment, the collective 5 symptoms, signs and laboratory findings of all of the claimant’s impairments will 6 be evaluated to determine whether they meet or equal the characteristics of any 7 relevant listed impairment.” Id. However, “[m]edical equivalence must be based 8 on medical findings,” and “[a] generalized assertion of functional problems is not 9 enough to establish disability at step three.” Id. at 1100 (quoting 20 C.F.R. § 10 404.1526(a)). 11 The claimant bears the burden of establishing his impairment (or 12 combination of impairments) meets or equals the criteria of a listed impairment. 13 Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005). “An adjudicator’s 14 articulation of the reason(s) why the individual is or is not disabled at a later step in 15 the sequential evaluation process will provide rationale that is sufficient for a 16 subsequent reviewer or court to determine the basis for the finding about medical 17 equivalence at step 3.” Social Security Ruling (SSR) 17-2P, 2017 WL 3928306, at 18 *4 (effective March 27, 2017). 19 Listing 13.06B requires chronic myelogenous leukemia (CML), in either 1) 20 accelerated or blast phase; or 2) in the chronic phase with a) bone marrow or stem ORDER - 11 Case 1:20-cv-03146-MKD ECF No. 24 filed 02/25/22 PageID.1342 Page 12 of 28 1 cell transplantation or b) progressive disease following initial anticancer therapy. 2 20 C.F.R. § 404, Subpt. P, App. 1, §13.06B. Section 13.00 provides instructions to 3 the adjudicator for how to evaluate specific cancers, and the section for leukemia 4 details laboratory and other findings necessary for diagnosis and determination of 5 type and phase of leukemia. See 20 C.F.R. § 404, Subpt. P, App. 1, § 13.002b. 6 Here, the ALJ found Plaintiff’s impairments “did not meet the requirements 7 of listing 13.06(B)” concluding: 8 9 the medical records do not demonstrate that he had [1] accelerated or blast phase, nor [2] that he had a bone-marrow or stem-cell transplantation or progressive disease during the period at issue. Rather [Plaintiff] experienced improvement with treatment, including hydroxyurea and Sprycel. 10 Id. citing Tr. 333, 345. 11 Plaintiff contends the ALJ erred because 1) he was in the accelerated phase; 12 and/or that the listing is met because 2) Plaintiff has CML in its chronic phase that 13 is progressive following initial anticancer therapy. ECF No. 21 at 5-8. 14 1. 13.06B1 Accelerated/blast phase 15 Under the Listing, accelerated or blast phase is met if laboratory findings 16 show the proportion of blast (immature) cells in the peripheral blood or bone 17 marrow is ten percent or greater. Here, as Defendant notes, none of the findings 18 Plaintiff cites to indicate he was ever in “accelerated or blast phase as specified by 19 the Listing.” ECF No. 22 at 16-17 (citing Tr. 321, 324-5, 348, 351) (noting blast 20 cells one percent or lower). Oncology records from January 11, 2013 confirm ORDER - 12 Case 1:20-cv-03146-MKD ECF No. 24 filed 02/25/22 PageID.1343 Page 13 of 28 1 there were “no peripheral blasts on his smear” and his oncologist explained bone 2 marrow biopsy was diagnostic of chronic phase disease, with “blasts 1% or lower.” 3 Tr. 345. The Court finds Plaintiff has not established his leukemia was in the 4 accelerated or blast phase as defined by Listing 13.06B1 prior to his date last 5 insured. 6 2. 13.06B2b 7 Listing 13.06B2b requires CML in its chronic phase that is progressive 8 following initial anticancer therapy. 20 C.F.R. § 404, Subpt. P, App. 1, § 9 13.00B2b. Records confirm Plaintiff’s diagnosis of CML in its chronic phase, as 10 indicated supra; and section 13.00I defines “progressive” as “the cancer becomes 11 more extensive after treatment; that is there is evidence your cancer is growing 12 after you have completed at least half of the planned initial anticancer therapy.” 20 13 C.F.R. § 404, Subpt. P, App. 1, § 13.00I6. As Plaintiff correctly points out, the 14 diagnosis, determination of stage or phase, and treatment of this blood cancer 15 depends on laboratory testing and monitoring response to treatment, including 16 regular blood work to determine cell and other blood counts. ECF No. 21 at 5-8, 17 see 20 C.F.R. § 404, Subpt. P, App. 1, § 13.002b. Plaintiff argues laboratory 18 findings support progression, not improvement as found by the ALJ. ECF No. 21 19 at 5-8. 20 ORDER - 13 Case 1:20-cv-03146-MKD 1 ECF No. 24 filed 02/25/22 PageID.1344 Page 14 of 28 The Court finds the ALJ did not provide analysis or any discussion of 2 laboratory findings in support of his conclusions at step three or elsewhere in the 3 decision, and such analysis is necessary to assess whether Plaintiff’s disease 4 improved or progressed during the period at issue. 5 Review of the medical record through Plaintiff’s date last insured shows 6 evidence of laboratory abnormalities including neutropenia, thrombocytopenia, 7 severe anemia, variable transcript levels and failure to achieve major molecular 8 response (MMR). See, e.g., Tr. 553-54; Tr. 329 (possible relapsed CML, “negative 9 for splenomegaly, but he has developed mild leukocytes and 10 thrombocytopenia …”); Tr. 331 (in near MMR but transcript level increasing 11 slightly); Tr. 333 (p210 transcript level down to 0.123% as compared to 26.2% in 12 December but has been severely anemic); Tr. 336 (chronic CML, anemia and 13 thrombocytopenia, with hemoglobin at 8.4 and platelet count at 73,000, initially 14 experiencing drug/treatment related fevers); Tr. 337 (oncologist explained while 15 Plaintiff “insists he feels very well” labs show severe anemia, with “hemoglobin 16 severely low 6.3 … he will be given 2 units of packed red blood cells today”); Tr. 17 321 (tolerating treatment very well but has not reached major molecular response 18 based on persistent transcript levels over 10% after 11 months treatment). 19 While Defendant offers an analysis of the medical evidence including 20 laboratory findings, ECF No. 22 at 16-17, the ALJ did not provide such analysis, ORDER - 14 Case 1:20-cv-03146-MKD ECF No. 24 filed 02/25/22 PageID.1345 Page 15 of 28 1 evaluation, or summary of the relevant medical evidence including laboratory 2 findings at step three or elsewhere in the decision, and thus the Court will not 3 consider the post hoc rationalization. See Orn v. Astrue, 495 F.3d 625, 630 (9th 4 Cir. 2007) (The Court will “review only the reasons provided by the ALJ in the 5 disability determination and may not affirm the ALJ on a ground upon which he 6 did not rely.”). 7 Records during the period at issue show abnormal laboratory findings, 8 including variable transcript levels, which could support Plaintiff’s argument of 9 progressive disease. The ALJ failed to adequately evaluate the relevant evidence 10 or provide sufficient rationale for the Court to determine the basis for step three 11 findings. On remand, the ALJ is instructed to reconsider whether Plaintiff’s 12 impairment(s) meet or equal Listing 13.06B2b, evaluating and interpreting the 13 relevant medical evidence including laboratory findings with the assistance of 14 medical expert testimony, and to set forth an analysis of the listing. 15 16 B. Medical Opinion Evidence Plaintiff challenges the ALJ’s evaluation of the medical opinions of Kiarash 17 Kojouri, M.D. and Jeremy Pietsch, LMHC. ECF No. 21, 9-13. 18 There are three types of physicians: “(1) those who treat the claimant 19 (treating physicians); (2) those who examine but do not treat the claimant 20 (examining physicians); and (3) those who neither examine nor treat the claimant ORDER - 15 Case 1:20-cv-03146-MKD ECF No. 24 filed 02/25/22 PageID.1346 Page 16 of 28 1 [but who review the claimant’s file] (nonexamining [or reviewing] physicians).” 2 Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (citations omitted). 3 Generally, a treating physician’s opinion carries more weight than an examining 4 physician’s, and an examining physician’s opinion carries more weight than a 5 reviewing physician’s. Id. at 1202. “In addition, the regulations give more weight 6 to opinions that are explained than to those that are not, and to the opinions of 7 specialists concerning matters relating to their specialty over that of 8 nonspecialists.” Id. (citations omitted). 9 If a treating or examining physician’s opinion is uncontradicted, the ALJ 10 may reject it only by offering “clear and convincing reasons that are supported by 11 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 12 “However, the ALJ need not accept the opinion of any physician, including a 13 treating physician, if that opinion is brief, conclusory and inadequately supported 14 by clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 15 (9th Cir. 2009) (internal quotation marks and brackets omitted). “If a treating or 16 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ 17 may only reject it by providing specific and legitimate reasons that are supported 18 by substantial evidence.” Bayliss, 427 F.3d at 1216 (citing Lester v. Chater, 81 19 F.3d 821, 830-31 (9th Cir. 1995)). 20 ORDER - 16 Case 1:20-cv-03146-MKD 1 ECF No. 24 filed 02/25/22 PageID.1347 Page 17 of 28 “Only physicians and certain other qualified specialists are considered 2 ‘[a]cceptable medical sources.’” Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 3 2014) (alteration in original); see 20 C.F.R. § 404.1513 (2013).5 However, an ALJ 4 is required to consider evidence from non-acceptable medical sources, such as 5 therapists. 20 C.F.R. § 404.1513(d) (2013).6 An ALJ may reject the opinion of a 6 non-acceptable medical source by giving reasons germane to the opinion. Ghanim, 7 763 F.3d at 1161. 8 1. Dr. Kojouri 9 On July 19, 2013 and August 6, 2013, Plaintiff’s treating oncologist, Dr. 10 Kojouri, completed “Documentation Request for Medical or Disability Condition” 11 12 13 14 15 5 The regulation that defines acceptable medical sources is found at 20 C.F.R. § 16 404.1502 for claims filed after March 27, 2017. The Court applies the regulation 17 in effect at the time the claim was filed. 18 6 The regulation that requires an ALJ’s consider opinions from non-acceptable 19 medical sources is found at 20 C.F.R. § 404.1502c for claims filed after March 27, 20 2017. The Court applies the regulation in effect at the time the claim was filed. ORDER - 17 Case 1:20-cv-03146-MKD ECF No. 24 filed 02/25/22 PageID.1348 Page 18 of 28 1 forms for Washington State DSHS and rendered an opinion on Plaintiff’s level of 2 functioning.7 Tr. 862-65, 866-69. 3 On July 19, 2013, Dr. Kojouri completed the DSHS form for the Mt. 4 Vernon, Washington Community Services Office. Tr. 866-69. He reported 5 Plaintiff had a physical condition that required special accommodations or 6 considerations, explaining Plaintiff had “chronic disabling weakness and fatigue 7 due to chronic myelogenous leukemia (CML).” Tr. 866. He indicated the 8 condition and diagnosis were supported by testing and lab reports. Id. Dr. Kojouri 9 indicated that Plaintiff’s condition limited his ability to work, look for work, or 10 prepare for work, and described any specific limitations as: “unable to lift heavy 11 objects/work long hours.” Id. He indicated Plaintiff was limited to sedentary 12 work, which was defined on the form as “able to lift 10 pounds maximum and 13 frequently lift or carry such articles as files and small tools. A sedentary job may 14 15 7 The record also contains opinions from Dr. Kojouri from after Plaintiff’s date last 16 insured, rendered in October 2015, October 2016, March 2017, and January 2020. 17 See Tr. 406-07, 538, 539, 1088. These are significantly past Plaintiff’s September 18 2013 date last insured and some may fall within time periods relevant to Plaintiff’s 19 2017 Title XVI claim, which is not before the Court. See Procedural History 20 supra). ORDER - 18 Case 1:20-cv-03146-MKD ECF No. 24 filed 02/25/22 PageID.1349 Page 19 of 28 1 require sitting, walking and standing or brief periods.” Tr. 867. Dr. Kojouri 2 indicated Plaintiff’s condition impacted his ability to access services, was 3 permanent and likely to limit his ability to work, look for work, or train to work; 4 and that he would be treated with chemotherapy and Dr. Kojouri would provide 5 and monitor Plaintiff’s ongoing treatment plan. Id. 6 On August 6, 2013, Dr. Kojouri completed a similar form for the Tacoma, 7 Washington DSHS Community Services Office. Tr. 862-65. He explained 8 Plaintiff had “chronic leukemia, on medical therapy indefinitely. At times, he may 9 experience weakness, fatigue, skin rash, but overall should be able to perform 10 regular work while in remission.” Tr. 862. He indicated the condition and 11 diagnosis were supported by testing and lab reports. Id. Dr. Kojouri again 12 indicated that Plaintiff’s condition limited his ability to work, look for work, or 13 prepare for work, and in the section of the form where he was asked to describe 14 any specific limits in ability to work, Dr. Kojouri wrote Plaintiff should “avoid 15 lifting heavy objects, standing for long periods of time”; and he indicated Plaintiff 16 should be limited to zero hours of work, defined on the form as “inability to 17 participate.” Id. Dr. Kojouri marked “yes” that Plaintiff had limitations with 18 lifting and carrying, writing in that Plaintiff was “not able to lift more than 20-25 19 lbs, at this time (per conversations w[ith] p[atient],” and he indicated Plaintiff was 20 limited to light work. Tr. 863. Dr. Kojouri indicated Plaintiff’s condition did not ORDER - 19 Case 1:20-cv-03146-MKD ECF No. 24 filed 02/25/22 PageID.1350 Page 20 of 28 1 impact his ability to access services, but that his condition was permanent and 2 likely to limit his ability to work, look for work, or train to work; and that 3 Plaintiff’s treatment plan was “dasatinib pill 100 mg every day” provided and 4 monitored by Dr. Kojouri. Id. 5 The ALJ gave little weight to Dr. Kojouri’s July 2013 opinion, and gave 6 varying weight to different portions of Dr. Kojouri’s August 2013 opinion. Tr. 7 555-56. Because Dr. Kojouri’s opinions were contradicted by the September 2014 8 nonexamining opinion of Dr. Hoskins, Tr. 90-91, the ALJ was required to provide 9 specific and legitimate reasons for discounting Dr. Kojouri’s opinions. See 10 Bayliss, 427 F.3d at 1216. 11 As this case is being remanded for the ALJ to reconsider the medical 12 evidence due to errors at step three, the ALJ is also instructed to reconsider Dr. 13 Kojouri’s medical opinion evidence during the period at issue with the benefit of 14 medical expert testimony. 15 Plaintiff also challenges the ALJ’s evaluation of several other medical 16 opinions rendered after Plaintiff’s date last insured, including the 2015 opinion of 17 Mr. Pietsch, and Dr. Kojouri’s 2015, 2016, 2017, and 2020 opinions. ECF No. 21 18 at 9-16. As the case is being remanded, the ALJ shall reconsider all medical 19 opinion evidence. 20 ORDER - 20 Case 1:20-cv-03146-MKD 1 2 ECF No. 24 filed 02/25/22 PageID.1351 Page 21 of 28 C. Plaintiff’s Symptom Claims Plaintiff faults the ALJ for failing to rely on reasons that were clear and 3 convincing in discrediting his symptom claims. ECF No. 21 at 16-20. An ALJ 4 engages in a two-step analysis to determine whether to discount a claimant’s 5 testimony regarding subjective symptoms. SSR 16–3p, 2016 WL 1119029, at *2. 6 “First, the ALJ must determine whether there is objective medical evidence of an 7 underlying impairment which could reasonably be expected to produce the pain or 8 other symptoms alleged.” Molina, 674 F.3d at 1112 (quotation marks omitted). 9 “The claimant is not required to show that [the claimant’s] impairment could 10 reasonably be expected to cause the severity of the symptom [the claimant] has 11 alleged; [the claimant] need only show that it could reasonably have caused some 12 degree of the symptom.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). 13 Second, “[i]f the claimant meets the first test and there is no evidence of 14 malingering, the ALJ can only reject the claimant’s testimony about the severity of 15 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 16 rejection.” Ghanim, 763 F.3d at 1163 (citations omitted). General findings are 17 insufficient; rather, the ALJ must identify what symptom claims are being 18 discounted and what evidence undermines these claims. Id. (quoting Lester, 81 19 F.3d at 834; Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (requiring the 20 ALJ to sufficiently explain why it discounted claimant’s symptom claims)). “The ORDER - 21 Case 1:20-cv-03146-MKD ECF No. 24 filed 02/25/22 PageID.1352 Page 22 of 28 1 clear and convincing [evidence] standard is the most demanding required in Social 2 Security cases.” Garrison, 759 F.3d at 1015 (quoting Moore v. Comm’r of Soc. 3 Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 4 Factors to be considered in evaluating the intensity, persistence, and limiting 5 effects of a claimant’s symptoms include: 1) daily activities; 2) the location, 6 duration, frequency, and intensity of pain or other symptoms; 3) factors that 7 precipitate and aggravate the symptoms; 4) the type, dosage, effectiveness, and 8 side effects of any medication an individual takes or has taken to alleviate pain or 9 other symptoms; 5) treatment, other than medication, an individual receives or has 10 received for relief of pain or other symptoms; 6) any measures other than treatment 11 an individual uses or has used to relieve pain or other symptoms; and 7) any other 12 factors concerning an individual’s functional limitations and restrictions due to 13 pain or other symptoms. SSR 16-3p, 2016 WL 1119029, at *7; 20 C.F.R. §§ 14 404.1529I. The ALJ is instructed to “consider all of the evidence in an 15 individual’s record,” to “determine how symptoms limit ability to perform work16 related activities.” SSR 16-3p, 2016 WL 1119029, at *2. 17 The ALJ found that Plaintiff’s medically determinable impairments could 18 reasonably be expected to cause some of the alleged symptoms, but that Plaintiff’s 19 statements concerning the intensity, persistence, and limiting effects of her 20 symptoms were not entirely consistent with the evidence. Tr. 553. The ALJ’s ORDER - 22 Case 1:20-cv-03146-MKD ECF No. 24 filed 02/25/22 PageID.1353 Page 23 of 28 1 evaluation of Plaintiff’s symptom claims and the resulting limitations relies 2 entirely on the ALJ’s assessment of the medical evidence. Having determined a 3 remand is necessary to readdress the medical evidence at step three, any 4 reevaluation must necessarily entail a reassessment of Plaintiff’s subjective 5 symptom claims. Thus, the Court need not reach this issue and on remand the ALJ 6 must also carefully reevaluate Plaintiff’s symptom claims in the context of the 7 entire record. See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) (“Because 8 we remand the case to the ALJ for the reasons stated, we decline to reach 9 [plaintiff’s] alternative ground for remand.”). 10 11 D. Step Two Plaintiff contends the ALJ erred by finding Plaintiff’s vision disorder non- 12 severe. ECF No. 21 at 20-21. At step two of the sequential process, the ALJ must 13 determine whether the claimant suffers from a “severe” impairment, i.e., one that 14 significantly limits his physical or mental ability to do basic work activities. 20 15 C.F.R. § 404.1520(c). To establish a severe impairment, the claimant must first 16 demonstrate the existence of a physical or mental impairment by providing medical 17 evidence consisting of signs, symptoms, and laboratory findings; the claimant’s 18 own statement of symptoms alone will not suffice. 20 C.F.R. § 404.1521. 19 An impairment may be found to be not severe when “medical evidence 20 establishes only a slight abnormality or a combination of slight abnormalities ORDER - 23 Case 1:20-cv-03146-MKD ECF No. 24 filed 02/25/22 PageID.1354 Page 24 of 28 1 which would have no more than a minimal effect on an individual’s ability to 2 work….” SSR 85-28 at *3. Similarly, an impairment is not severe if it does not 3 significantly limit a claimant’s physical or mental ability to do basic work 4 activities; which include walking, standing, sitting, lifting, pushing, pulling, 5 reaching, carrying, or handling; seeing, hearing, and speaking; understanding, 6 carrying out and remembering simple instructions; responding appropriately to 7 supervision, coworkers and usual work situations; and dealing with changes in a 8 routine work setting. 20 C.F.R. § 404.1522(a); SSR 85-28.8 9 Step two is “a de minimus screening device [used] to dispose of groundless 10 claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). “Thus, applying 11 our normal standard of review to the requirements of step two, [the Court] must 12 determine whether the ALJ had substantial evidence to find that the medical 13 evidence clearly established that [Plaintiff] did not have a medically severe 14 impairment or combination of impairments.” Webb v. Barnhart, 433 F.3d 683, 687 15 (9th Cir. 2005). 16 17 18 8 19 The Supreme Court upheld the validity of the Commissioner’s severity regulation, as clarified in SSR 85-28, in Bowen v. Yuckert, 482 U.S. 137, 153-54 20 (1987). ORDER - 24 Case 1:20-cv-03146-MKD 1 ECF No. 24 filed 02/25/22 PageID.1355 Page 25 of 28 Here, the ALJ found that there was “little evidence that retinal edema or any 2 other eye impairment caused any significant limitation in the Plaintiff’s ability to 3 perform basic work-related activities for a continuous 12 month period” and that 4 Plaintiff’s retinal edema was therefore non-severe; the ALJ did not “find evidence 5 of any other medically determinable eye impairment.” Tr. 550. Under the 6 regulations “seeing” is a basic work activity, and records show diagnosis and 7 treatment for retinal edema through the date last insured, along with reports of 8 blurry vision and eye problems which are not accounted for in the RFC. See 20 9 C.F.R. § 404.1522(a); SSR 85-28; Tr. 289, 297, 301, 303, 307. The ALJ also 10 indicated that “any non-severe impairment is taken into account in assessing the 11 [Plaintiff’s] residual functional capacity.” Tr. 549. The ALJ’s RFC, however, 12 does not account for any vision impairment or any difficulty with vision. See Tr. 13 552. As the case is being remanded for the ALJ to reconsider the medical evidence 14 at step three, the ALJ is also instructed to reconsider the step-two analysis. 15 16 E. Remedy Plaintiff urges this Court to remand for an immediate award of benefits. 17 ECF No. 21 at 21. 18 “The decision whether to remand a case for additional evidence, or simply to 19 award benefits is within the discretion of the court.” Sprague v. Bowen, 812 F.2d 20 1226, 1232 (9th Cir. 1987) (citing Stone v. Heckler, 761 F.2d 530 (9th Cir. 1985)). ORDER - 25 Case 1:20-cv-03146-MKD ECF No. 24 filed 02/25/22 PageID.1356 Page 26 of 28 1 When the Court reverses an ALJ’s decision for error, the Court “ordinarily must 2 remand to the agency for further proceedings.” Leon v. Berryhill, 880 F.3d 1041, 3 1045 (9th Cir. 2017); Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (“the 4 proper course, except in rare circumstances, is to remand to the agency for 5 additional investigation or explanation”); Treichler v. Comm’r of Soc. Sec. Admin., 6 775 F.3d 1090, 1099 (9th Cir. 2014). However, in a number of Social Security 7 cases, the Ninth Circuit has “stated or implied that it would be an abuse of 8 discretion for a district court not to remand for an award of benefits” when three 9 conditions are met. Garrison, 759 F.3d at 1020 (citations omitted). Under the 10 credit-as-true rule, where (1) the record has been fully developed and further 11 administrative proceedings would serve no useful purpose; (2) the ALJ has failed 12 to provide legally sufficient reasons for rejecting evidence, whether claimant 13 testimony or medical opinion; and (3) if the improperly discredited evidence were 14 credited as true, the ALJ would be required to find the claimant disabled on 15 remand, the Court will remand for an award of benefits. Revels v. Berryhill, 874 16 F.3d 648, 668 (9th Cir. 2017). Even where the three prongs have been satisfied, 17 the Court will not remand for immediate payment of benefits if “the record as a 18 19 20 ORDER - 26 Case 1:20-cv-03146-MKD ECF No. 24 filed 02/25/22 PageID.1357 Page 27 of 28 1 whole creates serious doubt that a claimant is, in fact, disabled.” Garrison, 759 2 F.3d at 1021. 3 Here, the Court finds further proceedings are necessary to resolve conflicts 4 in the record, as well as to further develop the record by taking testimony from a 5 medical expert. As such, the case is remanded for further proceedings consistent 6 with this Order. 7 On remand, the ALJ is to obtain the testimony of a medical expert, 8 preferably an oncologist, and conduct a new sequential analysis. The ALJ shall 9 also determine whether Plaintiff’s 2017 Title XVI claim or any other claim 10 remains pending and, as necessary, ensure that that any such claim is escalated to 11 the hearing level for adjudication at the time of this Title II matter. 12 13 CONCLUSION Having reviewed the record and the ALJ’s findings, the Court concludes the 14 ALJ’s decision is not supported by substantial evidence and not free of harmful 15 legal error. Accordingly, IT IS HEREBY ORDERED: 16 1. The District Court Executive is directed to substitute Kilolo Kijakazi as 17 Defendant and update the docket sheet. 18 2. Plaintiff’s Motion for Summary Judgment, ECF No. 21, is GRANTED. 19 3. Defendant’s Motion for Summary Judgment, ECF No. 22, is DENIED. 20 ORDER - 27 Case 1:20-cv-03146-MKD 1 ECF No. 24 filed 02/25/22 PageID.1358 Page 28 of 28 4. The Clerk’s Office shall enter JUDGMENT in favor of Plaintiff 2 REVERSING and REMANDING the matter to the Commissioner of Social 3 Security for further proceedings consistent with this recommendation pursuant to 4 sentence four of 42 U.S.C. § 405(g). 5 The District Court Executive is directed to file this Order, provide copies to 6 counsel, and CLOSE THE FILE. 7 DATED February 25, 2022. 8 s/Mary K. Dimke MARY K. DIMKE UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 ORDER - 28
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