Doty v. Commissioner of Social Security, No. 2:2018cv00170 - Document 15 (E.D. Wash. 2019)
Court Description: ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT granting in part ECF No. 12 and denying ECF No. 14 Defendant's Motion for Summary Judgment File closed. Signed by Magistrate Judge John T. Rodgers. (PH, Case Administrator)
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Doty v. Commissioner of Social Security Doc. 15 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 4 Apr 30, 2019 5 SEAN F. MCAVOY, CLERK 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 10 CHRISTOPHER D., No. 2:18-CV-00170-JTR Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 11 12 13 14 15 v. COMMISSIONER OF SOCIAL SECURITY, Defendant. 16 17 BEFORE THE COURT are cross-motions for summary judgment. ECF 18 Nos. 12, 14. Attorney Lora Lee Stover represents Christopher D. (Plaintiff); 19 Special Assistant United States Attorney Alexis Toma represents the 20 Commissioner of Social Security (Defendant). The parties have consented to 21 proceed before a magistrate judge. ECF No. 6. After reviewing the administrative 22 record and the briefs filed by the parties, the Court GRANTS, in part, Plaintiff’s 23 Motion for Summary Judgment; DENIES Defendant’s Motion for Summary 24 Judgment; and REMANDS the matter to the Commissioner for additional 25 proceedings pursuant to 42 U.S.C. §§ 405(g), 1383(c). 26 JURISDICTION 27 Plaintiff filed applications for Supplemental Security Income (SSI) and 28 Disability Insurance Benefits (DIB) on March 24, 2014, Tr. 147, 159, alleging ORDER GRANTING PLAINTIFF’S MOTION - 1 Dockets.Justia.com 1 disability since November 30, 2013, Tr. 300, 302, due to mental health issues and 2 knee issues, Tr. 333. The applications were denied initially and upon 3 reconsideration. Tr. 197-200, 203-07. Administrative Law Judge (ALJ) Mark 4 Kim held a hearing on August 10, 2016 and continued the hearing for Plaintiff to 5 obtain legal representation. Tr. 82-95. The ALJ held a second hearing on 6 February 7, 2017 and heard testimony from Plaintiff, medical expert Stephen 7 Rubin, Ph.D., and vocational expert Fred Cutler. Tr. 96-146. The ALJ issued an 8 unfavorable decision on March 27, 2017. Tr. 41-56. The Appeals Council denied 9 review on April 3, 2018. Tr. 1-7. The ALJ’s March 27, 2017 decision became the 10 final decision of the Commissioner, which is appealable to the district court 11 pursuant to 42 U.S.C. §§ 405(g), 1383(c). Plaintiff filed this action for judicial 12 review on May 23, 2018. ECF Nos. 1, 4. STATEMENT OF FACTS 13 The facts of the case are set forth in the administrative hearing transcript, the 14 15 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 16 here. 17 Plaintiff was 50 years old at the alleged date of onset. Tr. 300. Plaintiff 18 completed two years of college in 2012. Tr. 334. His reported work history 19 includes the jobs of forklift driver, group therapist, laborer, line cook, skills coach, 20 dock worker, post commander, detailer, and Atta lift operator. Tr. 334, 340. When 21 applying for benefits Plaintiff reported that he stopped working on November 30, 22 2013 because of his conditions. Tr. 333. Plaintiff reported working since applying 23 for benefits. Tr. 409-10. Income records show as many as six different employers 24 since the alleged date of onset. Tr. 317-24. 25 26 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 27 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 28 1039 (9th Cir. 1995). The Court reviews the ALJ’s determinations of law de novo, ORDER GRANTING PLAINTIFF’S MOTION - 2 1 deferring to a reasonable interpretation of the statutes. McNatt v. Apfel, 201 F.3d 2 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is 3 not supported by substantial evidence or if it is based on legal error. Tackett v. 4 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as 5 being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put 6 another way, substantial evidence is such relevant evidence as a reasonable mind 7 might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 8 389, 401 (1971). If the evidence is susceptible to more than one rational 9 interpretation, the court may not substitute its judgment for that of the ALJ. 10 Tackett, 180 F.3d at 1097. If substantial evidence supports the administrative 11 findings, or if conflicting evidence supports a finding of either disability or non- 12 disability, the ALJ’s determination is conclusive. Sprague v. Bowen, 812 F.2d 13 1226, 1229-30 (9th Cir. 1987). Nevertheless, a decision supported by substantial 14 evidence will be set aside if the proper legal standards were not applied in 15 weighing the evidence and making the decision. Brawner v. Secretary of Health 16 and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 17 18 SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process 19 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 20 416.920(a); see Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). In steps one 21 through four, the burden of proof rests upon the claimant to establish a prima facie 22 case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-99. This 23 burden is met once the claimant establishes that physical or mental impairments 24 prevent him from engaging in his previous occupations. 20 C.F.R. §§ 404.1520(a), 25 416.920(a)(4). If the claimant cannot do his past relevant work, the ALJ proceeds 26 to step five, and the burden shifts to the Commissioner to show that (1) the 27 claimant can make an adjustment to other work, and (2) specific jobs which the 28 claimant can perform exist in the national economy. Batson v. Comm’r of Soc. ORDER GRANTING PLAINTIFF’S MOTION - 3 1 Sec. Admin., 359 F.3d 1190, 1193-94 (9th Cir. 2004). If the claimant cannot make 2 an adjustment to other work in the national economy, he is found “disabled.” 20 3 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 4 ADMINISTRATIVE DECISION 5 On March 27, 2017, the ALJ issued a decision finding Plaintiff was not 6 disabled as defined in the Social Security Act from November 30, 2013 through 7 the date of the decision. 8 At step one, the ALJ found Plaintiff had engaged in substantial gainful 9 activity from June 25, 2015 through September 30, 2015. Tr. 43. However, the 10 ALJ addressed the remaining steps for the entire alleged period of disability, “for 11 completeness.” Tr. 44. 12 At step two, the ALJ determined that Plaintiff had the following severe 13 impairments: osteoarthritis of both knees; degenerative disc disease of the lumbar 14 spine; depressive disorder; generalized anxiety disorder; and obsessive-compulsive 15 disorder. Tr. 44. 16 At step three, the ALJ found that Plaintiff did not have an impairment or 17 combination of impairments that met or medically equaled the severity of one of 18 the listed impairments. Tr. 44. 19 20 21 22 23 24 25 At step four, the ALJ assessed Plaintiff’s residual function capacity and determined he could perform a range of light work with the following limitations: [H]e can never climb ladders or scaffolds; he can never crouch or crawl; he can occasionally stoop, kneel, and climb ramps and stairs; he is limited to work involving simple routine tasks with no production rate or pace work; and finally, he is limited to work involving occasional and only superficial interaction with the public, and occasional interaction with coworkers. 26 Tr. 47. The ALJ identified Plaintiff’s past relevant work as industrial truck 27 operator, short order cook, merchant patroller, stores laborer, hand packager, 28 kitchen helper, children’s institutional attendant, and substance abuse counselor. ORDER GRANTING PLAINTIFF’S MOTION - 4 1 Tr. 55. The ALJ found that he could not perform this past relevant work. Tr. 54- 2 55. At step five, the ALJ determined that, considering Plaintiff’s age, education, 3 4 work experience and residual functional capacity, and based on the testimony of 5 the vocational expert, there were other jobs that exist in significant numbers in the 6 national economy Plaintiff could perform, including the jobs of housekeeping 7 cleaner, cafeteria attendant, and agricultural sorter. Tr. 55-56. The ALJ concluded 8 Plaintiff was not under a disability within the meaning of the Social Security Act 9 from November 30, 2013, through the date of the ALJ’s decision. Tr. 56. ISSUES 10 The question presented is whether substantial evidence supports the ALJ’s 11 12 decision denying benefits and, if so, whether that decision is based on proper legal 13 standards. Plaintiff contends the ALJ erred by (1) failing to properly weigh his 14 symptom statements, (2) failing to make a proper residual functional capacity 15 determination, and (3) failing to make a proper step five determination. DISCUSSION1 16 17 18 19 20 1. Plaintiff’s Symptom Statements Plaintiff contests the ALJ’s determination that Plaintiff’s symptom statements were unreliable. ECF No. 12 at 12-15. It is generally the province of the ALJ to make determinations regarding the 21 22 1 In Lucia v. S.E.C., 138 S.Ct. 2044 (2018), the Supreme Court recently held 23 that ALJs of the Securities and Exchange Commission are “Officers of the United 24 States” and thus subject to the Appointments Clause. To the extent Lucia applies 25 to Social Security ALJs, the parties have forfeited the issue by failing to raise it in 26 their briefing. See Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1161 27 n.2 (9th Cir. 2008) (the Court will not consider matters on appeal that were not 28 specifically addressed in an appellant’s opening brief). ORDER GRANTING PLAINTIFF’S MOTION - 5 1 reliability of Plaintiff’s symptom statements, Andrews, 53 F.3d at 1039, but the 2 ALJ’s findings must be supported by specific cogent reasons, Rashad v. Sullivan, 3 903 F.2d 1229, 1231 (9th Cir. 1990). Absent affirmative evidence of malingering, 4 the ALJ’s reasons for rejecting the claimant’s testimony must be “specific, clear 5 and convincing.” Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Lester v. 6 Chater, 81 F.3d 821, 834 (9th Cir. 1995). “General findings are insufficient: 7 rather the ALJ must identify what testimony is not credible and what evidence 8 undermines the claimant’s complaints.” Lester, 81 F.3d at 834. 9 The ALJ found Plaintiff’s statements concerning the intensity, persistence, 10 and limiting effects of his symptoms to be “not entirely consistent with the medical 11 evidence and other evidence in the record.” Tr. 47. Specifically, the ALJ stated 12 that “[t]he medical evidence shows that the claimant’s condition is generally 13 controlled and responsive to treatment.” Id. 14 This is the only reason for rejecting the symptom statements that Plaintiff 15 identified in ALJ’s decision. ECF No. 12 at 13. In contrast, Defendant argues that 16 the ALJ provided four reasons: (1) Plaintiff’s statements were inconsistent with 17 the medical evidence showing Plaintiff’s symptoms were generally controlled and 18 responsive to treatment; (2) Plaintiff’s statements were contradicted by multiple 19 examining and non-examining opinions; (3) Plaintiff’s statements were 20 undermined by Plaintiff’s work activity during the relevant period; and (4) 21 Plaintiff’s statements were unsupported by medical examinations and mental status 22 findings. ECF No. 14 at 7. 23 Here, the ALJ’s determination that Plaintiff’s symptom statements were not 24 supported by the medical evidence, is clearly stated in the decision and identified 25 by both parties as a reason provided by the ALJ. Tr. 47; ECF No. 12 at 13; ECF 26 No. 14 at 7. However, this reason standing alone is insufficient to support the 27 ALJ’s adverse determination regarding Plaintiff’s symptom statements. Objective 28 medical evidence is a “relevant factor in determining the severity of the claimant’s ORDER GRANTING PLAINTIFF’S MOTION - 6 1 pain and its disabling effects,” but it cannot be the only reason for rejecting a 2 claimant’s statements regarding his symptoms. Rollins v. Massanari, 261 F.3d 3 853, 857 (9th Cir. 2001). Furthermore, the ALJ failed to make any direct 4 comparisons between Plaintiff’s testimony and the medical evidence in the record. 5 The ALJ summarized Plaintiff’s statements in a function report and at the hearing. 6 Tr. 47. He then summarized the physical medical evidence and concluded that the 7 evidence supported the residual functional capacity determination. Tr. 47-49. 8 Finally, he summarized the psychological medical evidence and concluded that the 9 evidence supported the residual functional capacity determination. Tr. 49-50. At 10 no point did the ALJ connect any specific medical evidence as undermining any 11 specific statement by Plaintiff regarding his symptoms. Therefore, this is 12 insufficient to meet the specific, clear and convincing standard. See Lester, 81 13 F.3d at 834 (“General findings are insufficient: rather the ALJ must identify what 14 testimony is not credible and what evidence undermines the claimant’s 15 complaints.”); See Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015) 16 (“Because the ALJ failed to identify the testimony she found not credible, she did 17 not link that testimony to the particular parts of the record supporting her non- 18 credibility determination. This was legal error.”). 19 Defendant argues that Plaintiff’s challenge to the ALJ’s determination is 20 inadequate. ECF No. 14 at 8. The Court generally agrees. Plaintiff’s entire 21 argument consists of asserting that Plaintiff has provided evidence sufficient to 22 support his reported symptoms and their alleged severity and that no providers 23 challenged his credibility. ECF No. 12 at 13-14. This would typically be 24 insufficient to challenge the ALJ’s treatment of Plaintiff’s symptom statements as 25 it amounts to asking the Court to reweigh the evidence, which is not the Court’s 26 role. See Tackett, 180 F.3d at 1097 (If the evidence is susceptible to more than one 27 rational interpretation, the court may not substitute its judgment for that of the 28 ALJ.); Andrews, 53 F.3d at 1039 (The ALJ is responsible for determining ORDER GRANTING PLAINTIFF’S MOTION - 7 1 credibility, resolving conflicts in medical testimony, and resolving ambiguities.). 2 However, the ALJ failed to provide a single, specific reason for rejecting 3 Plaintiff’s symptom statements beyond that they were unsupported by the medical 4 evidence. See infra. Therefore, under Rollins, the ALJ erred in his treatment of 5 Plaintiff’s symptom statements, and a remand is required for the ALJ to evaluate 6 Plaintiff’s symptom statements properly. 7 The next two reasons Defendant identifies as the ALJ’s reasons for rejecting 8 Plaintiff’s symptom statements amount to post hoc rationalizations. See Orn v. 9 Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (The Court will “review only the reasons 10 provided by the ALJ in the disability determination and may not affirm the ALJ on 11 a ground upon which he did not rely.”). While the ALJ discussed the opinions of 12 examining and non-examining providers, the ALJ never specifically concluded this 13 reason undermined Plaintiff’s statements. Tr. 50-54. Instead, the ALJ found that 14 the medical opinions “show that the claimant retains considerable work-related 15 abilities.” Tr. 50. Likewise, the ALJ discussed Plaintiff’s work during the relevant 16 period, but did not conclude the reason undermined Plaintiff’s statements. Tr. 49. 17 Instead, the ALJ found that the work activity following the alleged date of onset 18 contributed towards the “[b]alance of evidence” supporting the residual functional 19 capacity determination. Id. 20 An ALJ is required to provide reasons that are “sufficiently specific to allow 21 a reviewing court to conclude that the adjudicator rejected the claimant’s testimony 22 on permissible grounds and did not ‘arbitrarily discredit a claimant’s testimony 23 regarding pain.’” Bunnell v. Sullivan, 947 F.2d 341, 345-56 (9th Cir. 1991) 24 (quoting Elam v. Railroad Retirement Bd, 921 F.2d 1210, 1215 (11th Cir. 1991). 25 The Ninth Circuit stated that the finding in Bunnell was intended to supplement the 26 preexisting “clear and convincing” standard with the requirement that the reasons 27 provided by the ALJ must also be “specific.” Burrell v. Colvin, 775 F.3d 1133, 28 1137 (9th Cir. 2014). “The clear and convincing standard is the most demanding ORDER GRANTING PLAINTIFF’S MOTION - 8 1 required in Social Security cases.” Garrison v. Colvin, 759 F.3d 995, 1015 (9th 2 Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th 3 Cir. 2002). Therefore, without a specific finding by the ALJ that he rejected 4 Plaintiff’s statements based on the opinions of examining and non-examining 5 providers and based on Plaintiff’s work activity, these reasons amount to post hoc 6 rationalizations, which will not be considered by the Court. The remaining reason Defendant attributes to the ALJ’s decision, that 7 8 Plaintiff’s symptom statements were unsupported by medical examinations and 9 mental status findings, is the same as the ALJ’s conclusion that the statements 10 were not supported by the medical evidence, Tr. 49, and has been found to not 11 meet the specific, clear and convincing standard. See supra. Therefore, the case is remanded for the ALJ to evaluate Plaintiff’s symptom 12 13 statements in light of the prevailing case law and the requirements set forth in 14 S.S.R. 16-3p. 15 2. Residual Functional Capacity Determination Plaintiff challenges the ALJ’s residual functional capacity determination by 16 17 generally asserting that his limitations were not adequately addressed and should 18 have resulted in a restricted range of sedentary work. ECF No. 12 at 15. 19 Additionally, Plaintiff asserts that the ALJ failed to include Dr. Rubin’s opined 20 limitation that he should work alone. Id. at 16. In forming the residual functional capacity determination, the ALJ is 21 22 required to consider Plaintiff’s statements regarding his symptoms and their 23 resulting limitations. 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). Since the case 24 is being remanded for the ALJ to perform a new evaluation of Plaintiff’s symptom 25 statements, a new residual functional capacity determination will also be required. 26 3. Step Five 27 Plaintiff challenges the ALJ’s step five determination by asserting that the 28 hypothetical presented to the vocational expert was incomplete and should have ORDER GRANTING PLAINTIFF’S MOTION - 9 1 included Dr. Rubin’s opined limitation that he work alone. ECF No. 12 at 16. 2 Additionally, Plaintiff argues that the jobs the vocational expert identified as ones 3 he could perform, housekeeping cleaner, cafeteria attendant, and agricultural 4 sorter, require a worker to maintain pace and production, which is inconsistent 5 with the testimony of the vocational expert requiring absenteeism and being off 6 task. Id. at 15-16. 7 At step five, the burden shifts to the Commissioner to show that (1) the 8 claimant can make an adjustment to other work, and (2) specific jobs which the 9 claimant can perform exist in the national economy. Batson, 359 F.3d at 1193-94. 10 In making this determination, the ALJ must consider a claimant’s residual 11 functional capacity and vocational factors. 20 C.F.R. §§ 404.1520(a)(4)(v), 12 404.1520(g), 416.920(a)(4)(v) 416.920(g). Therefore, a new step five 13 determination will be required upon remand following the ALJ’s new residual 14 functional capacity determination. 15 16 17 REMEDY Plaintiff requests the Court to apply the credit-as-true rule and remand this case for an immediate award of benefits. ECF No. 12 at 16. 18 The decision whether to remand for further proceedings or reverse and 19 award benefits is within the discretion of the district court. McAllister v. Sullivan, 20 888 F.2d 599, 603 (9th Cir. 1989). Under the credit-as-true rule, where (1) the 21 record has been fully developed and further administrative proceedings would 22 serve no useful purpose, (2) the ALJ has failed to provide legally sufficient reasons 23 for rejecting evidence, whether claimant testimony or medical opinion, and (3) if 24 the improperly discredited evidence were credited as true, the ALJ would be 25 required to find the claimant disabled on remand, we remand for an award of 26 benefits. Revels v. Berryhill, 874 F.3d 648, 668 (9th Cir. 2017). Even when the 27 three prongs have been satisfied, the Court will not remand for immediate payment 28 of benefits if “the record as a whole creates serious doubt that a claimant is, in fact, ORDER GRANTING PLAINTIFF’S MOTION - 10 1 2 disabled.” Garrison, 759 F.3d at 1021. Here, Plaintiff submitted additional medical evidence to the Appeals 3 Council, Tr. 2, 8-32, and attached additional medical evidence to his briefing in 4 this Court, ECF No. 12-1. This continued submission of evidence demonstrates 5 that the record before the ALJ was not complete and further administrative 6 proceedings are required. Upon remand, the ALJ will gather any outstanding 7 medical evidence, evaluate Plaintiff’s symptom statements, make a new residual 8 functional capacity determination, and make a new step five determination. CONCLUSION 9 10 Accordingly, IT IS ORDERED: 11 1. 12 13 Defendant’s Motion for Summary Judgment, ECF No. 14, is DENIED. 2. Plaintiff’s Motion for Summary Judgment, ECF No. 12, is 14 GRANTED, in part, and the matter is REMANDED for additional proceedings 15 consistent with this Order. 16 3. Application for attorney fees may be filed by separate motion. 17 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 April 30, 2019. 21 22 23 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION - 11
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