Chain v. Commissioner of Social Security, No. 2:2018cv00070 - Document 19 (E.D. Wash. 2019)
Court Description: ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT ECF No. 14 and denying ECF No. 16 Defendant's Motion for Summary Judgment. File closed. Signed by Magistrate Judge John T. Rodgers. (PH, Case Administrator)
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Chain v. Commissioner of Social Security Doc. 19 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF WASHINGTON Mar 20, 2019 SEAN F. MCAVOY, CLERK 5 6 7 8 9 10 11 12 APRIL C., No. 2:18-CV-00070-JTR Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT v. COMMISSIONER OF SOCIAL SECURITY, Defendant. 13 14 BEFORE THE COURT are cross-motions for summary judgment. ECF 15 Nos. 14, 16. Attorney Dana C. Madsen represents April C. (Plaintiff); Special 16 Assistant United States Attorney Franco L. Becia represents the Commissioner of 17 Social Security (Defendant). The parties have consented to proceed before a 18 magistrate judge. ECF No. 9. After reviewing the administrative record and the 19 briefs filed by the parties, the Court GRANTS, in part, Plaintiff’s Motion for 20 Summary Judgment; DENIES Defendant’s Motion for Summary Judgment; and 21 REMANDS the matter to the Commissioner for additional proceedings pursuant to 22 42 U.S.C. §§ 405(g), 1383(c). 23 JURISDICTION 24 Plaintiff filed an application for Supplemental Security Income (SSI) on 25 June 11, 2007, Tr. 153, alleging disability since January 1, 2001 due to bipolar 26 disorder, manic depressive disorder, hepatitis C, and asthma, Tr. 158. The 27 application was denied initially and upon reconsideration. Tr. 79-82, 86-88. 28 Administrative Law Judge (ALJ) Marie Palachuk held a hearing on September 10, ORDER GRANTING PLAINTIFF’S MOTION - 1 Dockets.Justia.com 1 2009 and heard testimony from Plaintiff, medical expert Margaret Moore, Ph.D, 2 and vocational expert Deborah Lapoint. Tr. 30-71. The ALJ issued an 3 unfavorable decision on October 14, 2009. Tr. 13-23. The Appeals Council 4 denied review on January 14, 2011. Tr. 1-5. Plaintiff requested judicial review of 5 the ALJ decision, and this Court entered an order remanding the case for additional 6 proceedings on February 21, 2012. Tr. 669-71. On May 3, 2012, the Appeals 7 Council remanded the case back to the ALJ. Tr. 676-77. The ALJ held a hearing on December 4, 2012 after hearing testimony from 8 9 Plaintiff, medical expert William Spence, M.D., and vocational expert Sharon 10 Welter. Tr. 566-87. At this hearing, Plaintiff amended her date of onset to June 11 11, 2007. Tr. 569. The ALJ issued an unfavorable decision on January 15, 2013. 12 Tr. 707-21. On May 6, 2015, the Appeals Council remanded the ALJ’s January 13 15, 2013 decision to a new ALJ for additional proceedings. Tr. 727-31. 14 The case was assigned to ALJ Lori Freund who held two hearings on 15 October 1, 2015 and July 13, 2016 and heard testimony from Plaintiff, Jay Toews, 16 Ph.D., M.D., and vocational expert Anne Jones. Tr. 588-668. The ALJ issued an 17 unfavorable decision on December 22, 2016. Tr. 542-58. The Appeals Council 18 refused to assume jurisdiction over the ALJ decision on December 29, 2017, Tr. 19 487-93, making the ALJ’s December 22, 2016 decision the final decision of the 20 Commissioner, which is appealable to the district court pursuant to 42 U.S.C. §§ 21 405(g), 1383(c). Plaintiff initiated this action for judicial review on February 27, 22 2018. ECF Nos. 1, 4. STATEMENT OF FACTS 23 The facts of the case are set forth in the administrative hearing transcript, the 24 25 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 26 here. 27 28 Plaintiff was 28 years old at the date of application. Tr. 73. At application, Plaintiff reported that the highest grade she completed was the tenth, Tr. 163, and ORDER GRANTING PLAINTIFF’S MOTION - 2 1 that she had never worked, Tr. 158. At the September 10, 2009 hearing, she 2 testified that she completed the ninth grade and attempted to obtain her GED, but 3 fell too far behind and quit. Tr. 50. She also testified that she did some work for a 4 janitorial services company and a telemarketing company. Tr. 51-52. 5 6 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 7 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 8 1039 (9th Cir. 1995). The Court reviews the ALJ’s determinations of law de novo, 9 deferring to a reasonable interpretation of the statutes. McNatt v. Apfel, 201 F.3d 10 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is 11 not supported by substantial evidence or if it is based on legal error. Tackett v. 12 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as 13 being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put 14 another way, substantial evidence is such relevant evidence as a reasonable mind 15 might accept as adequate to support a conclusion. Richardson v. Perales, 402 16 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational 17 interpretation, the court may not substitute its judgment for that of the ALJ. 18 Tackett, 180 F.3d at 1097. If substantial evidence supports the administrative 19 findings, or if conflicting evidence supports a finding of either disability or non- 20 disability, the ALJ’s determination is conclusive. Sprague v. Bowen, 812 F.2d 21 1226, 1229-30 (9th Cir. 1987). Nevertheless, a decision supported by substantial 22 evidence will be set aside if the proper legal standards were not applied in 23 weighing the evidence and making the decision. Brawner v. Secretary of Health 24 and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 25 SEQUENTIAL EVALUATION PROCESS 26 The Commissioner has established a five-step sequential evaluation process 27 for determining whether a person is disabled. 20 C.F.R. § 416.920(a); see Bowen 28 v. Yuckert, 482 U.S. 137, 140-42 (1987). In steps one through four, the burden of ORDER GRANTING PLAINTIFF’S MOTION - 3 1 proof rests upon the claimant to establish a prima facie case of entitlement to 2 disability benefits. Tackett, 180 F.3d at 1098-99. This burden is met once the 3 claimant establishes that physical or mental impairments prevent her from 4 engaging in her previous occupations. 20 C.F.R. § 416.920(a)(4). If the claimant 5 cannot do her past relevant work, the ALJ proceeds to step five, and the burden 6 shifts to the Commissioner to show that (1) the claimant can make an adjustment to 7 other work, and (2) the claimant can perform specific jobs which exist in the 8 national economy. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193-94 9 (9th Cir. 2004). If the claimant cannot make an adjustment to other work in the 10 national economy, a finding of “disabled” is made. 20 C.F.R. § 416.920(a)(4)(v). ADMINISTRATIVE DECISION 11 12 On December 22, 2016, the ALJ issued a decision finding Plaintiff was not 13 disabled as defined in the Social Security Act from June 11, 2007 through the date 14 of the decision. 15 16 17 At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since June 11, 2007, the date of application. Tr. 545. At step two, the ALJ determined that Plaintiff had the following severe 18 impairments: obesity; learning disorder; mood disorder; generalized anxiety 19 disorder; personality disorder; and borderline intellectual functioning. Tr. 545. 20 At step three, the ALJ found that Plaintiff did not have an impairment or 21 combination of impairments that met or medically equaled the severity of one of 22 the listed impairments. Tr. 547. 23 At step four, the ALJ assessed Plaintiff’s residual function capacity and 24 determined she could perform work at all exertional levels with the following 25 nonexertional limitations: 26 27 28 The claimant could perform, routine, and repetitive tasks at a reasoning level of 2. The claimant could have superficial interaction with public and coworkers and no tandem tasks could be performed. The claimant ORDER GRANTING PLAINTIFF’S MOTION - 4 could adapt to occasional changes in the work setting. The claimant needs 10% additional time to adapt to changes. 1 2 3 Tr. 550. The ALJ identified Plaintiff’s past relevant work as cleaner, housekeeper 4 and found she was unable to perform this past relevant work. Tr. 556. At step five, the ALJ determined that, considering Plaintiff’s age, education, 5 6 work experience and residual functional capacity, and based on the testimony of 7 the vocational expert, there were other jobs that exist in significant numbers in the 8 national economy Plaintiff could perform, including the jobs of hand packager, 9 cleaner II, and laundry laborer. Tr. 557. The ALJ concluded Plaintiff was not 10 under a disability within the meaning of the Social Security Act from June 11, 11 2007, through the date of the ALJ’s decision. Tr. 558. 12 ISSUES The question presented is whether substantial evidence supports the ALJ’s 13 14 decision denying benefits and, if so, whether that decision is based on proper legal 15 standards. Plaintiff contends the ALJ erred by (1) failing to properly address 16 Plaintiff’s symptom statements and (2) failing to properly address the medical 17 opinions in the file. DISCUSSION1 18 19 1. Plaintiff’s Symptom Statements 20 Plaintiff contests the ALJ’s determination that Plaintiff’s symptom 21 1 22 23 24 25 26 27 28 In Lucia v. S.E.C., 138 S.Ct. 2044 (2018), the Supreme Court recently held that ALJs of the Securities and Exchange Commission are “Officers of the United States” and thus subject to the Appointments Clause. To the extent Lucia applies to Social Security ALJs, the parties have forfeited the issue by failing to raise it in their briefing. See Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008) (the Court will not consider matters on appeal that were not specifically addressed in an appellant’s opening brief). ORDER GRANTING PLAINTIFF’S MOTION - 5 1 2 statements were unreliable. ECF No. 14 at 11-12. It is generally the province of the ALJ to make determinations regarding the 3 reliability of Plaintiff’s symptom statements, Andrews, 53 F.3d at 1039, but the 4 ALJ’s findings must be supported by specific cogent reasons, Rashad v. Sullivan, 5 903 F.2d 1229, 1231 (9th Cir. 1990). Absent affirmative evidence of malingering, 6 the ALJ’s reasons for rejecting the claimant’s testimony must be “specific, clear 7 and convincing.” Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Lester v. 8 Chater, 81 F.3d 821, 834 (9th Cir. 1995). “General findings are insufficient: 9 rather the ALJ must identify what testimony is not credible and what evidence 10 11 undermines the claimant’s complaints.” Lester, 81 F.3d at 834. The ALJ found Plaintiff’s statements concerning the intensity, persistence, 12 and limiting effects of her symptoms to be “not entirely consistent with the medical 13 evidence and other evidence in the record.” Tr. 551. The ALJ then failed to set 14 forth a single specific reason for rejecting Plaintiff’s symptom statements. 15 Defendant argues that Plaintiff’s challenge to the ALJ’s determination is 16 inadequate. ECF No. 16 at 6-7. The Court generally agrees. Plaintiff’s entire 17 argument consists of three sentences: 18 22 Here, [Plaintiff]’s treating physician Dr. Mark Parsons, M.D. has indicated she would be limited to sedentary work, only on a part time basis. He indicates that with a combination of her physical and mental impairments, she would be unable to work. Therefore, there are no clear and convincing reasons to disregard [Plaintiff]’s symptoms and limitations. 23 ECF No. 14 at 12. This would typically be insufficient to challenge an ALJ’s 24 treatment of Plaintiff’s symptoms statements as it fails to discuss the reasons the 25 ALJ provided for rejecting the statements. See Carmickle, 533 F.3d at 1161 n.2 26 (The Court may refuse to address issues that are not argued with specificity by 27 Plaintiff.). However, the ALJ failed to provide a single, specific reason for 28 rejecting Plaintiff’s symptom statements. Again, Defendant argues that the ALJ 19 20 21 ORDER GRANTING PLAINTIFF’S MOTION - 6 1 provided “clear and convincing” reasons throughout her briefing. ECF No. 16 at 2 8-13. However, Defendant is unable to articulate these “clear and convincing” 3 reasons. Id. Defendant asserts that the ALJ rejected Plaintiff’s symptom 4 statements because (1) Plaintiff’s belief of her inability to perform work activity 5 was inconsistent with the record as a whole (2) there was evidence that Plaintiff 6 was malingering (3) the allegations were inconsistent with the medical evidence, 7 (4) she received minimal/conservative treatment, and (5) she failed to follow 8 treatment recommendations. Id. The ALJ never discussed Plaintiff’s belief that 9 she could not work, the evidence of malingering, her treatment, or her failure to 10 follow treatment recommendations in reference to the reliability of her statements. 11 The ALJ referenced an elevated F-score on the MMPI “suggesting that she 12 could be exaggerating her symptoms or making a cry for help,” but failed to draw 13 any connection between the test results and the reliability of Plaintiff’s symptom 14 statements. Tr. 553. The ALJ also discussed Plaintiff’s lack of treatment at the 15 beginning of the summary of the medical evidence but failed to connect this with 16 Plaintiff’s symptom statements. Tr. 551. 17 An ALJ is required to provide reasons that are “sufficiently specific to allow 18 a reviewing court to conclude that the adjudicator rejected the claimant’s testimony 19 on permissible grounds and did not ‘arbitrarily discredit a claimant’s testimony 20 regarding pain.’” Bunnell v. Sullivan, 947 F.2d 341, 345-56 (9th Cir. 1991) 21 (quoting Elam v. Railroad Retirement Bd, 921 F.2d 1210, 1215 (11th Cir. 1991). 22 The Ninth Circuit stated that the finding in Bunnell was intended to supplement the 23 preexisting “clear and convincing” standard with the requirement that the reasons 24 provided by the ALJ must also be “specific.” Burrell v. Colvin, 775 F.3d 1133, 25 1137 (9th Cir. 2014). “The clear and convincing standard is the most demanding 26 required in Social Security cases.” Garrison v. Colvin, 759 F.3d 995, 1015 (9th 27 Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th 28 Cir. 2002)). Therefore, without a specific finding by the ALJ that she rejected ORDER GRANTING PLAINTIFF’S MOTION - 7 1 Plaintiff’s statements based on Plaintiff’s belief she could not work, the MMPI, her 2 minimal treatment, or her failure to follow treatment, these reasons amount to post 3 hoc rationalizations, which will not be considered by the Court. See Orn v. Astrue, 4 495 F.3d 625, 630 (9th Cir. 2007) (The Court will “review only the reasons 5 provided by the ALJ in the disability determination and may not affirm the ALJ on 6 a ground upon which he did not rely.”). 7 The ALJ did conclude that “claimant’s statements concerning the intensity, 8 persistence and limiting effect of these symptoms are not entirely consistent with 9 the medical evidence.” Tr. 551. However, the ALJ is required to identify what 10 testimony is undermined and what evidence undermines that testimony. Lester, 81 11 F.3d at 834 (“General findings are insufficient: rather the ALJ must identify what 12 testimony is not credible and what evidence undermines the claimant’s 13 complaints.”). Despite Plaintiff’s lack of argument, this case must be remanded for 14 15 additional proceedings because the ALJ’s discussion of Plaintiff’s symptom 16 statements lacks any specific, clear and reviewable rationale. 17 2. 18 19 Medical Opinions Plaintiff argues that the ALJ failed to properly consider and weigh the medical opinion expressed by Mark Parsons, M.D. ECF No. 14 at 12-13. 20 In weighing medical source opinions, the ALJ should distinguish between 21 three different types of physicians: (1) treating physicians, who actually treat the 22 claimant; (2) examining physicians, who examine but do not treat the claimant; 23 and, (3) nonexamining physicians who neither treat nor examine the claimant. 24 Lester, 81 F.3d at 830. The ALJ should give more weight to the opinion of a 25 treating physician than to the opinion of an examining physician. Orn, 495 F.3d at 26 631. Likewise, the ALJ should give more weight to the opinion of an examining 27 physician than to the opinion of a nonexamining physician. Id. 28 When a treating physician’s opinion is not contradicted by another ORDER GRANTING PLAINTIFF’S MOTION - 8 1 physician, the ALJ may reject the opinion only for “clear and convincing” reasons, 2 and when an examining physician’s opinion is contradicted by another physician, 3 the ALJ is only required to provide “specific and legitimate reasons” to reject the 4 opinion. Lester, 81 F.3d at 830-31. The specific and legitimate standard can be 5 met by the ALJ setting out a detailed and thorough summary of the facts and 6 conflicting clinical evidence, stating her interpretation thereof, and making 7 findings. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The ALJ is 8 required to do more than offer her conclusions, she “must set forth [her] 9 interpretations and explain why they, rather than the doctors’, are correct.” 10 Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). 11 Plaintiff argues that Dr. Parsons’ opinion should have been given controlling 12 weight over the opinions of the medical experts Dr. Spence and Dr. Belzer because 13 these opinions did not qualify as substantial evidence. ECF No. 14 at 13. Once 14 again, Plaintiff’s argument leaves the Court wanting. Plaintiff simply asserts that 15 the opinion should be given controlling weight without challenging the ALJ’s 16 reasons for rejecting the opinion. Id. However, since the case is being remanded 17 for the ALJ to make a new determination regarding Plaintiff’s symptom 18 statements, the ALJ will readdress all the medical opinions in the file upon remand. 19 REMEDY 20 21 Plaintiff urges the Court to apply the credit-as-true rule and remand this case for an immediate award of benefits. ECF No. 14 at 13-14. 22 The decision whether to remand for further proceedings or reverse and 23 award benefits is within the discretion of the district court. McAllister v. Sullivan, 24 888 F.2d 599, 603 (9th Cir. 1989). Under the credit-as-true rule, where (1) the 25 record has been fully developed and further administrative proceedings would 26 serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons 27 for rejecting evidence, whether claimant testimony or medical opinion; and (3) if 28 the improperly discredited evidence were credited as true, the ALJ would be ORDER GRANTING PLAINTIFF’S MOTION - 9 1 required to find the claimant disabled on remand, we remand for an award of 2 benefits. Revels v. Berryhill, 874 F.3d 648, 668 (9th Cir. 2017). Even when the 3 three prongs have been satisfied, the Court will not remand for immediate payment 4 of benefits if “the record as a whole creates serious doubt that a claimant is, in fact, 5 disabled.” Garrison, 759 F.3d at 1021. 6 Here, Plaintiff failed to articulate any viable argument to overcome the 7 ALJ’s determination. The record as a whole in this case creates serious doubt that 8 Plaintiff is, in fact, disabled. However, due to the ALJ’s failure to articulate a 9 single reason for rejecting Plaintiff’s symptom statements, the case is remanded for 10 a new de novo hearing before a new ALJ. CONCLUSION 11 12 Accordingly, IT IS ORDERED: 13 1. 14 15 16 17 Defendant’s Motion for Summary Judgment, ECF No. 16, is DENIED. 2. Plaintiff’s Motion for Summary Judgment, ECF No. 14, is GRANTED. The District Court Executive is directed to file this Order and provide a copy 18 to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff 19 and the file shall be CLOSED. 20 DATED March 20, 2019. 21 22 23 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION - 10
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