John v. Colvin (previously Astrue), No. 2:2012cv00474 - Document 26 (E.D. Wash. 2013)

Court Description: ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS; granting 18 Plaintiff's Motion for Summary Judgment; denying 23 Defendant's Motion for Summary Judgment. Case closed. Signed by Senior Judge Fred Van Sickle. (CV, Case Administrator)

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John v. Colvin (previously Astrue) Doc. 26 1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON 6 7 MICHAEL L. JOHN, NO: CV-12-474-FVS Plaintiff, 8 v. 9 10 11 CAROLYN W. COLVIN, Acting Commissioner of Social Security, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS Defendant. 12 Before the Court are cross-motions for summary judgment, ECF Nos. 18, 13 23. The Court has reviewed the motions, the memoranda in support, the Plaintiff’s 14 reply memorandum, and the administrative record. 15 JURISDICTION 16 Plaintiff Michael L. John filed an application for Supplemental Security 17 Income (“SSI”) on February 3, 2009. (Tr. 18, 174-76.) Plaintiff alleged an onset 18 date of April 1, 2007. (Tr. 174.) Benefits were denied initially and on 19 reconsideration. On November 12, 2009, Plaintiff timely requested a hearing 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 1 Dockets.Justia.com 1 before an administrative law judge (“ALJ”). (Tr. 109-111.) A video hearing was 2 held before ALJ Gene Duncan on December 7, 2010. (Tr. 34-85.) At that 3 hearing, testimony was taken from Jinnie Lawson, a vocational expert; Michael L. 4 John, the claimant; Daniel Wiseman, MD, a medical expert; and Carolyn Estrada, 5 the claimant’s mother. (Tr. 33.) The Plaintiff was not represented by counsel at 6 the hearing. (Tr. 36-37.) On April 1, 2011, the ALJ issued a decision finding 7 Plaintiff not disabled. (Tr. 18-28.) The Appeals Council denied review. (Tr. 1-3.) 8 This matter is properly before this Court under 42 U.S.C. § 405(g). 9 STATEMENT OF THE CASE 10 The facts of this case are set forth in the administrative hearing transcripts 11 and record and will only be summarized here. The Plaintiff was thirty-six years 12 old when he applied for benefits and was thirty-eight years old when the ALJ 13 issued the decision. The Plaintiff currently is unemployed and lives with his 14 mother. The Plaintiff has not sustained work since 2007. The Plaintiff describes 15 being unable to find work due to knee, back, and foot pain that are the result of his 16 clubfeet and the myriad surgeries to correct his clubfeet. 17 STANDARD OF REVIEW 18 Congress has provided a limited scope of judicial review of a 19 Commissioner’s decision. 42 U.S.C. § 405(g). A court must uphold the 20 Commissioner’s decision, made through an ALJ, when the determination is not ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 2 1 based on legal error and is supported by substantial evidence. See Jones v. 2 Heckler, 760 F.2d 993, 995 (9th Cir. 1985) (citing 42 U.S.C. § 405(g)). “The 3 [Commissioner’s] determination that a claimant is not disabled will be upheld if 4 the findings of fact are supported by substantial evidence.” Delgado v. Heckler, 5 722 F.2d 570, 572 (9th Cir. 1983) (citing 42 U.S.C. § 405(g)). Substantial 6 evidence is more than a mere scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 7 1119 n.10 (9th Cir. 1975), but less than a preponderance. McCallister v. Sullivan, 8 888 F.2d 599, 601-02 (9th Cir. 1989) (citing Desrosiers v. Secretary of Health and 9 Human Services, 846 F.2d 573, 576 (9th Cir. 1988)). Substantial evidence “means 10 such evidence as a reasonable mind might accept as adequate to support a 11 conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (citations omitted). 12 “[S]uch inferences and conclusions as the [Commissioner] may reasonably draw 13 from the evidence” will also be upheld. Mark v. Celebrezze, 348 F.2d 289, 293 14 (9th Cir. 1965). On review, the court considers the record as a whole, not just the 15 evidence supporting the decisions of the Commissioner. Weetman v. Sullivan, 877 16 F.2d 20, 22 (9th Cir. 1989) (quoting Kornock v. Harris, 648 F.2d 525, 526 (9th Cir. 17 1980)). 18 It is the role of the trier of fact, not this court, to resolve conflicts in 19 evidence. Richardson, 402 U.S. at 400. If evidence supports more than one 20 rational interpretation, the court may not substitute its judgment for that of the ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 3 1 Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 2 (9th Cir. 1984). Nevertheless, a decision supported by substantial evidence will 3 still be set aside if the proper legal standards were not applied in weighing the 4 evidence and making a decision. Brawner v. Sec’y of Health and Human Services, 5 839 F.2d 432, 433 (9th Cir. 1988). Thus, if there is substantial evidence to support 6 the administrative findings, or if there is conflicting evidence that will support a 7 finding of either disability or nondisability, the finding of the Commissioner is 8 conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 9 10 SEQUENTIAL PROCESS The Social Security Act (the “Act”) defines “disability” as the “inability to 11 engage in any substantial gainful activity by reason of any medically determinable 12 physical or mental impairment which can be expected to result in death or which 13 has lasted or can be expected to last for a continuous period of not less than 12 14 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a 15 Plaintiff shall be determined to be under a disability only if his impairments are of 16 such severity that Plaintiff is not only unable to do his previous work but cannot, 17 considering Plaintiff’s age, education and work experiences, engage in any other 18 substantial gainful work which exists in the national economy. 42 U.S.C. 19 §§ 423(d)(2)(A), 1382c(a)(3)(B). Thus, the definition of disability consists of both 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 4 1 medical and vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 2 (9th Cir. 2001). 3 The Commissioner has established a five-step sequential evaluation process 4 for determining whether a claimant is disabled. 20 C.F.R. § 416.920. Step one 5 determines if he or she is engaged in substantial gainful activities. If the claimant 6 is engaged in substantial gainful activities, benefits are denied. 20 C.F.R. §§ 7 404.1520(a)(4)(i), 416.920(a)(4)(i). 8 If the claimant is not engaged in substantial gainful activities, the decision 9 maker proceeds to step two and determines whether the claimant has a medically 10 severe impairment or combination of impairments. 20 C.F.R. 11 §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant does not have a severe 12 impairment or combination of impairments, the disability claim is denied. 13 If the impairment is severe, the evaluation proceeds to the third step, which 14 compares the claimant’s impairment with a number of listed impairments 15 acknowledged by the Commissioner to be so severe as to preclude substantial 16 gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); see also 20 17 C.F.R. § 404, Subpt. P, App. 1. If the impairment meets or equals one of the listed 18 impairments, the claimant is conclusively presumed to be disabled. 19 20 If the impairment is not one conclusively presumed to be disabling, the evaluation proceeds to the fourth step, which determines whether the impairment ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 5 1 prevents the claimant from performing work he or she has performed in the past. 2 If the plaintiff is able to perform his or her previous work, the claimant is not 3 disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At this step, the 4 claimant’s residual functional capacity (“RFC”) assessment is considered. 5 If the claimant cannot perform this work, the fifth and final step in the 6 process determines whether the claimant is able to perform other work in the 7 national economy in view of his or her residual functional capacity and age, 8 education and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 9 416.920(a)(4)(v); Bowen v. Yuckert, 482 U.S. 137 (1987). 10 The initial burden of proof rests upon the claimant to establish a prima facie 11 case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 12 (9th Cir. 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial 13 burden is met once the claimant establishes that a physical or mental impairment 14 prevents him from engaging in his or her previous occupation. The burden then 15 shifts, at step five, to the Commissioner to show that (1) the claimant can perform 16 other substantial gainful activity, and (2) a “significant number of jobs exist in the 17 national economy” which the claimant can perform. Kail v. Heckler, 722 F.2d 18 1496, 1498 (9th Cir. 1984). 19 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 6 1 2 ALJ’S FINDINGS At step one of the five-step sequential evaluation process, the ALJ found that 3 Plaintiff has not engaged in substantial gainful activity since February 3, 2009, the 4 application date. (Tr. 20.) At step two, the ALJ found that Plaintiff had the severe 5 impairments of: (1) clubfeet, (2) bilateral ankle fusions, and (3) bilateral knee 6 arthritis. (Tr. 20-21.) The ALJ found that none of the Plaintiff’s impairments, 7 taken alone or in combination, met or medically equaled any of the impairments 8 listed in Part 404, Subpart P, Appendix 1 of 20 C.F.R. (Tr. 22.) The ALJ 9 determined that the Plaintiff had the RFC to perform sedentary work with 10 restrictions as to climbing, crawling, or working at heights. (Tr. 22-26.) The RFC 11 also imposed a requirement that the plaintiff be allowed to stand and stretch from 12 one to three minutes every hour and have a sit/stand option. (Tr. 22-26.) At step 13 four, the ALJ determined that the Plaintiff could perform relevant past work as a 14 cashier II. (Tr. 26-27.) Accordingly, the ALJ found that the Plaintiff was not 15 under a disability for purposes of the Act. (Tr. 28.) 16 ISSUES 17 The Plaintiff argues that the ALJ’s decision is not supported by substantial 18 evidence or free of legal error because (1) the ALJ erred by finding that Mr. John 19 did not meet or equal listing 1.02 in Part 404, Subpart P, Appendix 1 of 20 C.F.R., 20 (2) the ALJ erred in finding Mr. John not credible, (3) the ALJ erred in ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 7 1 determining that Mr. John could return to his former work as a cashier II, and (4) 2 the Defendant failed to meet its burden of showing that substantial jobs exist in the 3 economy for Mr. John to perform. 4 5 6 DISCUSSION Listing at Step Three The Plaintiff asserts that ALJ Duncan erred when he found that Mr. John did 7 not meeting listing 1.02 in Part 404, Subpart P, Appendix 1 of 20 C.F.R. Listing 8 1.02 reads: 9 10 11 12 13 Major dysfunction of a joint(s) (due to any cause): Characterized by gross anatomical deformity (e.g., subluxation, contracture, bony or fibrous ankylosis, instability) and chronic joint pain and stiffness with signs of limitation of motion or other abnormal motion of the affected joint(s), and findings on appropriate medically acceptable imaging of joint space narrowing, bony destruction, or ankylosis of the affected joint(s). With: 14 A. Involvement of one major peripheral weight-bearing joint (i.e., hip, knee, or ankle), resulting in inability to ambulate effectively, as defined in 1.00B2b; 15 or 16 17 B. Involvement of one major peripheral joint in each upper extremity (i.e., shoulder, elbow, or wrist-hand), resulting in inability to perform fine and gross movements effectively, as defined in 1.00B2c. 18 The Plaintiff’s argument is multi-faceted. The Plaintiff argues first that the 19 testifying medical examiner, Dr. Wiseman, opined that Mr. John met listing 1.02. 20 The Plaintiff argues that the notes of Roger Starkweather, MD, support Dr. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 8 1 Wiseman’s finding that Mr. John meets listing 1.02. The Plaintiff also argues that 2 the opinion of Richard A. Dickson, MD, which was procured after the hearing 3 before the ALJ, supports a finding that Mr. John equals listing 1.02. At a 4 minimum, argues Plaintiff, the ALJ erred in failing to sufficiently address why Mr. 5 John did not meet the listing. 6 Dr. Wiseman testified at the December 7, 2010, video hearing that 7 based on the information in this record there is an equivalence yet I do think that we certainly need to get additional information to firm up this concern. The equivalence would be to 1.02, major dysfunction of joints, involvement of in this case two weight bearing joints, the ankles. So that’s 1.02(A). 8 9 10 (Tr. 51.) However, Dr. Wiseman continued on to note that the Plaintiff “had a 11 deterioration which is unexplained and needs explanation.” (Tr. 51.) Dr. Wiseman 12 described Dr. Starkweather’s notes as “woefully thin.” (Tr. 51.) Ultimately, Dr. 13 Wiseman clarified that he believe the evidence as it existed in the record “suggests 14 that there is an equaling” but he thought the evidence “needs sort of corroboration 15 from another point of view than the point of view that we have from Doctor 16 Starkwe[a]ther.” (Tr. 51.) Dr. Wiseman further clarified that his skepticism was 17 based on the fact that Mr. John “worked as recently as about a year ago” and that 18 Dr. Starkweather noted that the main impediment to Mr. John working were “his 19 problems with legal authorities more than . . . his physical problems.” (Tr. 51-52.) 20 Dr. Wiseman noted that he was “not able to accept [] the progress of this particular ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 9 1 incidence of club-feet.” (Tr. 52.) Given the threadbare nature of the record, Dr. 2 Wiseman testified that he could not form an opinion as to Mr. John’s specific 3 functional limitations. (Tr. 53-54.) 4 In response to a recommendation by Dr. Wiseman, ALJ Duncan kept the 5 record open to allow Mr. John to supplement the medical evidence. Mr. John 6 visited Richard A. Dickson, MD, on January 19, 2011, approximately a month and 7 a half after the hearing before ALJ Duncan. Dr. Dickson, a neurologist, noted that 8 “Mr. John has complaints of ankle pain for many years duration. He also has knee 9 pain and back.” (Tr. 397.) However, while noting that Mr. John has a “slight 10 valgus deformity and very flat feet,” Dr. Dickson opined that there was not an 11 “obvious abnormality on examination of a neurologic nature” and that he was 12 “skeptical that we will find anything on x-rays that correlate with any of his 13 symptoms.” (Tr. 397.) Ultimately, Dr. Dickson concluded that he “did not find 14 any mechanism for his pain based on his examination.” (Tr. 397.) Dr. Dickson 15 noted no limitations in carrying up to twenty pounds. (Tr. 398.) Dr. Dickson also 16 noted few if any limitations in Mr. Jon’s ability to stand, sit, or walk. (Tr. 399.) 17 In his decision, ALJ Duncan describes the evidence presented by Dr. 18 Starkweather, Dr. Wiseman (mislabeled as Dr. Reuben Beezy), and Dr. Dickson. 19 (Tr. 20-21.) ALJ Duncan then proceeds to note that “no treating or examining 20 physician has mentioned findings that meet or are equivalent in severity to the ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 10 1 criteria of any listed impairment, nor does the evidence show medical signs or 2 findings that are the same or equivalent to those of any listed impairment, 3 specifically sections 1.00 . . . .” (Tr. 22.) 4 Mr. John urges this Court to find that the evidence in the record mandates a 5 finding that Mr. John meets listing 1.02(A). However, at best, the testimony of Dr. 6 Wiseman is ambiguous on the issue. Dr. Wiseman appears to conclude that Dr. 7 Starkweather’s report supports a finding that a listing has been equaled, but Dr. 8 Starkweather then immediately finds the evidence not sufficient to support the 9 listing. (Tr. 51.) As Mr. John notes, there is evidence of an abnormality, pain, and 10 other factors supporting a listing finding in the record. However, there is 11 conflicting evidence over the extent to which Mr. John’s ability to ambulate is 12 limited. (Tr. 43, 47, 51, 399). 13 It is the ALJ’s job to resolve ambiguities in the record. Andrews v. Shalala, 14 53 F.3d 1035, 1039 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 15 750 (9th Cir. 1989)). And the district court must uphold the ALJ’s decision where 16 the evidence is susceptible to more than one rational interpretation. Id. However, 17 while deference is owed to the ALJ’s resolution of conflicts in the evidence, an 18 ALJ must explain his or her decision at step three. Marcia v. Sullivan, 900 F.2d 19 172, 176 (9th Cir. 1990). 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 11 1 Under the step three portion of his decision, ALJ Duncan states simply that 2 no examining or treating physician has found Mr. John to meet a listing nor does 3 the evidence support a finding that a listing has been met. (Tr. 22.) This brief and 4 conclusory statement fails to account for Dr. Wiseman’s statements that evidence 5 in the record suggests a finding that Mr. John meets listing 1.02(A). While Dr. 6 Wiseman noted limits to that evidence, the ALJ should have addressed its 7 sufficiency, particularly given the fact that Dr. Wiseman advised further testing to 8 rectify the deficiency and further testing was performed. The ALJ’s decision 9 provides no insight as to the relative weight he gives the opinions of Doctors 10 Starkweather and Dickson on the step-three issue. Even though ALJ Duncan 11 provides a thorough recitation of the medical evidence, including the evidence 12 provided by all three doctors that bear on the step-three issue (Tr. 20-21), his 13 failure to state his interpretation of that evidence renders the recitation meaningless 14 with regard to justifying his step three decision. See Magallenes, 881 F.2d at 751 15 (quoting Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986)). 16 Given the ALJ’s error in failing to adequately explain his step-three 17 decision, this Court has discretion to remand for further proceedings. Marcia, 900 18 F.2d at 176. Where the Commissioner “is in a better position that this court to 19 evaluate the evidence, remand is appropriate.” Id. (citing McAllister v. Sullivan, 20 888 F.2d 599, 603 (9th Cir. 1989)). In this case, the Commissioner is in a better ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 12 1 position to reevaluate all of the medical evidence, including Dr. Dickson’s opinion, 2 to more adequately address step three. For example, the Commissioner could 3 determine that new testimony from a medical examiner is necessary to determine 4 whether Dr. Dickson’s opinion provides a sufficient basis to assuage Dr. 5 Wiseman’s concerns about the sufficiency of the record. Also, Dr. Dickson 6 expressed concern that review of Mr. John’s foot condition may better be served 7 by consultation of an orthopedist. Given the possible need for additional medical 8 evidence and testimony, the ALJ is in a better position to evaluate the evidence, 9 and this Court will remand for further proceedings. 10 Therefore, IT IS HEREBY ORDERED: 11 1. The Plaintiff’s motion for summary judgment, ECF No. 18, is 12 13 14 15 GRANTED. 2. The Defendant’s motion for summary judgment, ECF No. 23, is DENIED. 3. This case is REMANDED for the ALJ to conduct a new hearing and 16 issue a new opinion in which the ALJ describe more fully the 17 determination at step three. Given also the confessed error at the step 18 four determination that Mr. John could return to his prior work, the ALJ 19 will also take new testimony from a vocational expert. The ALJ should 20 also consider the suggestion of Dr. Dickson located on that Mr. John’s ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 13 1 foot issues may best be determined by consultation of an orthopedist as 2 opposed to a neurologist. Finally, the ALJ should consult a medical 3 expert at the hearing on the issue of whether the supplemented record is 4 now sufficient to address both the step-three issue as well as Mr. John’s 5 residual functional capacity. 6 4. JUDGMENT shall be entered for the Plaintiff. 7 IT IS SO ORDERED. 8 The District Court Executive is hereby directed to enter this Order, to 9 10 provide copies to counsel, and to close this file. DATED this 9th of December 2013. 11 12 13 s/Fred Van Sickle Fred Van Sickle Senior United States District Judge 14 15 16 17 18 19 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 14

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