Lopez v. Saul, No. 2:2020cv00276 - Document 17 (E.D. Wash. 2021)

Court Description: ORDER GRANTING 14 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; DENYING 15 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. The decision of the Commissioner is REVERSED and REMANDED for proceedings consistent with this Order. This file is CLOSED. Signed by Chief Judge Stanley A Bastian. (CLP, Case Administrator)

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Lopez v. Saul Doc. 17 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 1 Sep 27, 2021 2 SEAN F. MCAVOY, CLERK 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 TRINIDY L., 1 10 Plaintiff, 11 v. No. 2:20-CV-00276-SAB 12 COMMISSIONER OF SOCIAL ORDER GRANTING 13 SECURITY, PLAINTIFF’S MOTION FOR Defendant. 14 SUMMARY JUDGMENT; 15 DENYING DEFENDANT’S 16 MOTION FOR SUMMARY 17 JUDGMENT 18 19 Before the Court are cross-motions for summary judgment. ECF Nos. 14, 20 15. The motions were heard without oral argument. Plaintiff is represented by 21 Chad L. Hatfield; Defendant is represented by Jordan Goddard and Tim Durkin. 22 Plaintiff brings this action seeking judicial review of the Commissioner of 23 Social Security’s final decision denying his application for Supplemental Security 24 Income under Title XVI of the Social Security Act, 42 U.S.C. §§ 1382. After 25 26 1 Pursuant to the recommendation of the Committee on Court Administration and 27 Case Management of the Judicial Conference of the United States, Plaintiff’s name 28 is partially redacted. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~1 Dockets.Justia.com 1 reviewing the administrative record and briefs filed by the parties, the Court is now 2 fully informed. For the reasons set forth below, the Court grants Plaintiff’s Motion 3 for Summary Judgment, ECF No. 14, and denies Defendant’s Motion for Summary 4 Judgment, ECF No. 15. 5 I. Jurisdiction On March 13, 2018, Plaintiff filed an application for supplemental security 6 7 income. Plaintiff initially alleged a disability onset date of April 1, 2016, but at the 8 hearing amended the onset of disability date to March 13, 2018, the date the 9 application was filed. Plaintiff’s application was denied initially and on reconsideration. On 10 11 December 10, 2018, Plaintiff requested a hearing before an Administrative Law 12 Judge (“ALJ”). On August 29, 2019, Plaintiff appeared and testified at a video 13 hearing held before ALJ R.J. Payne. Dr. Lynne Jahnke testified at the hearing, as 14 did Jay Toews, Ed.D and Vocational Expert Sharon F. Welter. The ALJ issued a 15 decision on September 5, 2019, finding that Plaintiff was not disabled. Plaintiff requested review by the Appeals Council; the Appeals Council 16 17 denied the request on June 9, 2020. The Appeals Council’s denial of review makes 18 the ALJ’s decision the “final decision” of the Commissioner of Social Security, 19 which this Court is permitted to review. 42 U.S.C. § 405(g), 1383(c)(1)(3). Plaintiff filed a timely appeal with the United States District Court for the 20 21 Eastern District of Washington on August 7, 2020. ECF No. 1. The matter is 22 before this Court pursuant to 42 U.S.C. § 405(g). 23 24 II. Five-Step Sequential Evaluation Process The Social Security Act defines disability as the “inability to engage in any 25 substantial gainful activity by reason of any medically determinable physical or 26 mental impairment which can be expected to result in death or which has lasted or 27 can be expected to last for a continuous period of not less than twelve months.” 42 28 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant shall be determined to be ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~2 1 under a disability only if their impairments are of such severity that the claimant is 2 not only unable to do their previous work, but cannot, considering claimant’s age, 3 education, and work experiences, engage in any other substantial gainful work that 4 exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). The 5 Commissioner has established a five-step sequential evaluation process to 6 determine whether a person is disabled in the statute. See 20 C.F.R. §§ 7 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). 8 Step One: Is the claimant engaged in substantial gainful activities? 20 9 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). Substantial gainful activity is work 10 done for pay and requires compensation above the statutory minimum. Keyes v. 11 Sullivan, 894 F.2d 1053, 1057 (9th Cir. 1990). If the claimant is engaged in 12 substantial activity, benefits are denied. 20 C.F.R. § 404.1520(b), 416.920(b). If 13 the claimant is not, the ALJ proceeds to step two. 14 Step Two: Does the claimant have a medically-severe impairment or 15 combination of impairments? 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). A 16 severe impairment is one that lasted or must be expected to last for at least 12 17 months and must be proven through objective medical evidence. Id. §§ 404.1509, 18 416.909. If the claimant does not have a severe impairment or combination of 19 impairments, the disability claim is denied. Id. § 404.1520(a)(4)(ii), 20 416.920(a)(4)(ii). If the impairment is severe, the evaluation proceeds to the third 21 step. 22 Step Three: Does the claimant’s impairment meet or equal one of the listed 23 impairments acknowledged by the Commissioner to be so severe as to preclude 24 substantial gainful activity? 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If 25 the impairment meets or equals one of the listed impairments, the claimant is 26 conclusively presumed to be disabled. 20 C.F.R. §§ 404.1520(d), 416.920(d). If the 27 impairment is not one conclusively presumed to be disabling, the evaluation 28 proceeds to the fourth step. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~3 1 Before considering to the fourth step, the ALJ must first determine the 2 claimant’s residual functional capacity. An individual’s residual functional 3 capacity is their ability to do physical and mental work activities on a sustained 4 basis despite limitations from their impairments. 20 C.F.R. §§ 404.1545(a)(1), 5 416.945(a)(1). The residual functional capacity is relevant to both the fourth and 6 fifth steps of the analysis. 7 Step Four: Does the impairment prevent the claimant from performing work 8 they have performed in the past? 20 C.F.R. §§ 404.1520(a)(4)(iv), 9 416.920(a)(4)(iv). If the claimant is able to perform their previous work, they are 10 not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f). If the claimant cannot perform 11 this work, the evaluation proceeds to the fifth and final step. 12 Step Five: Is the claimant able to perform other work in the national 13 economy in view of their age, education, and work experience? 20 C.F.R. §§ 14 404.1520(a)(4)(v), 416.920(a)(4)(v). The initial burden of proof rests upon the 15 claimant to establish a prima facie case of entitlement to disability benefits. Tackett 16 v. Apfel, 108 F.3d 1094, 1098 (9th Cir. 1999). This burden is met once a claimant 17 establishes that a physical or mental impairment prevents him from engaging in her 18 previous occupation. Id. At step five, the burden shifts to the Commissioner to 19 show that the claimant can perform other substantial gainful activity. Id. 20 21 III. Standard of Review The Commissioner’s determination will be set aside only when the ALJ’s 22 findings are based on legal error or are not supported by substantial evidence in the 23 record as a whole. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992) (citing 24 42 U.S.C. § 405(g)). Substantial evidence is “more than a mere scintilla,” 25 Richardson v. Perales, 402 U.S. 389, 401 (1971), but “less than a preponderance,” 26 Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975). Substantial 27 evidence is “such relevant evidence as a reasonable mind might accept as adequate 28 to support a conclusion.” Richardson, 402 U.S. at 401. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~4 1 A decision supported by substantial evidence will be set aside if the proper 2 legal standards were not applied in weighing the evidence and making the decision. 3 Brawner v. Secr’y of Health & Human Servs., 839 F.2d 432, 433 (9th Cir. 1988). 4 An ALJ is allowed “inconsequential” errors as long as they are immaterial to the 5 ultimate nondisability determination. Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 6 1050, 1055 (9th Cir. 2006). The Court must uphold the ALJ’s denial of benefits if 7 the evidence is susceptible to more than one rational interpretation, one of which 8 supports the decision of the administrative law judge. Batson v. Barnhart, 359 F.3d 9 1190, 1193 (9th Cir. 2004). It “must consider the entire record as a whole, 10 weighing both the evidence that supports and the evidence that detracts from the 11 Commissioner’s conclusion, and may not affirm simply by isolating a specific 12 quantum of supporting evidence.” Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 13 2017) (quotation omitted). “If the evidence can support either outcome, the court 14 may not substitute its judgment for that of the ALJ.” Matney, 981 F.2d at 1019. 15 For claims filed on or after March 27, 2017, 2 like the present claim, new 16 regulations apply regarding the evaluation of medical evidence. Revisions to Rules 17 Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844 (Jan. 18, 2017). 18 The new regulations eliminate any semblance of a hierarchy of medical opinions 19 and state that the agency does not defer to any medical opinions. 20 C.F.R. 20 §§ 404.1520c(a), 416.920c. Specifically, the rules eliminate the agency’s “treating 21 source rule,” which gave special deference to certain opinions from treating 22 sources. 82 Fed. Reg. at 5853. In articulating the ALJ’s consideration of medical 23 opinions for persuasiveness, the ALJ considers the following factors: (1) 24 Supportability and (2) Consistency; (3) Relationship with the claimant, including 25 26 2 For claims filed prior to March 27, 2017, an ALJ was to give more weight to “those 27 physicians with the most significant clinical relationship with the plaintiff.” 28 Carmickle v. Comm’r, 533 F.3d 1155, 1164 (9th Cir. 2008). ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~5 1 (i) length of treatment relationship; (ii) frequency of examinations; (iii) purpose of 2 the treatment relationship; (iv) extend of the treatment relationship; (v) 3 examination relationship; (4) Specialization; and (5) Other factors, including 4 whether the medical source has familiarity with the other evidence or an 5 understanding of SSA’s disability program’s policies and evidentiary requirements. 6 20 C.F.R. §§ 404.1520c(b), 416.920c(b). The most important factors in evaluating 7 the persuasiveness of medical opinions are supportability and consistency. 20 8 C.F.R. §§ 404.1520c(a), 416.920c(a). 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Supportability and consistency are further explained in the regulations: (1) Supportability. The more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be. (2) Consistency. The more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be. 20 C.F.R. §§ 404.1520c(c); 416.920c(c). When a medical source provides multiple medical opinions, the ALJ must articulate how it considered these opinions in a single analysis applying the abovelisted factors. 20 C.F.R. §§ 404.1520c(b)(1), 416.920c(b)(1). If equally persuasive medical opinions about the same issue are both equally well-supported and consistent with the record, but are not exactly the same, the ALJ must articulate how it considered the other most persuasive factors in making its decision. 20 C.F.R. §§ 404.1520c(c)(3), 416.920c(c)(3). IV. Statement of Facts The facts have been presented in the administrative record, the ALJ’s decision, and the briefs to this Court. Only the most relevant facts are summarized 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~6 1 herein. At the time of the hearing, Plaintiff was 32 years old. While Plaintiff 2 3 attended school, including special education classes, he eventually earned his 4 GED. 5 In March 2011, when Plaintiff was 23, he was shot nine times by law 6 enforcement, which resulted in fractures of the right femur, left tibia, and left 7 humerus. He was also shot in the torso and hand. Plaintiff was able to rehabilitate 8 and work for a time after the injuries. 9 He indicates he has significant pain from the rods that were placed in his 10 legs. He has significant difficulties with trust and going outside, which have been 11 exacerbated since he was released from jail in 2018. He reports that he is unable to 12 leave the house about five days a week. He has nightmares and difficulty sleeping. 13 He has difficulty watching TV and paying attention because he is focusing on what 14 is happening outside and worrying if someone is trying to come through the door. 15 He has attended counseling sessions but has a difficult time trusting his therapists. 16 Plaintiff last used controlled substances in July 2017. 17 Notably, at the hearing, it appears that Plaintiff kept looking at the door and 18 appeared apprehensive about being in the room. The ALJ attempted to reassure 19 him by letting him know this was an informal hearing with only three people in the 20 room, besides his representative. Even so, Plaintiff continued to look back at the 21 door during the hearing. 22 23 V. The ALJ’s Findings The ALJ issued an opinion affirming denial of benefits. AR 17. At step one, 24 the ALJ found that Plaintiff has not engaged in substantial gainful activity since 25 March 13, 2018. AR 17. 26 At step two, the ALJ identified the following medically determinable 27 impairments: obesity; multiple gunshot wounds, fractures of the left humerus, left 28 tibia, and right femur status post-surgical repair; adjustment disorder; anxiety ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~7 1 disorder; attention deficit hyperactivity disorder (ADHD); personality disorder; 2 posttraumatic stress disorder (PTSD): methamphetamine dependence; cannabis 3 abuse; opioid abuse. AR 24. He ultimately found, however, that none of these 4 physical and mental impairments, considered singly and in combination, 5 significantly limit Plaintiff’s ability to perform basis work activities. AR 24. 6 In the alternative, the ALJ proceeded to step five. The ALJ concluded that 7 Plaintiff has a residual function capacity (“RFC”) as follows: 8 9 10 11 12 13 14 15 Can lift or carry up to 50 pounds occasionally and up to 25 pounds occasionally; can stand or walk up to six hours, and can sit up to six hours, or an eight-hour workday with normal breaks; can frequently climb ramps or stairs, but can never climb ladders, ropes, or scaffolds; can frequently balance, stoop, kneel, crouch, and crawl; but must avoid moderate exposure to hazards (such as machinery, unprotected heights, etc.); can understand, remember, and carry out simple instructions, and carry out short, routine work tasks in two-hour blocks between breaks; not well-suited to work with the public or closely with coworkers, but can interact for brief period of time on a superficial basis with others in a work setting. 16 Id. at 24-25. The ALJ in the alternative found that Plaintiff was not disabled and capable 17 18 of performing work that exists in significant numbers in the national economy, 19 including fish cleaner, cleaner, housekeeping, and cafeteria attendant. AR 30. 20 21 VI. Issues for Review (1) Whether the ALJ erred in finding that Plaintiff did not suffer any severe 22 impairments? VII. Discussion 23 24 Here, the ALJ erred in concluding that the record does not support a finding 25 that Plaintiff suffers from severe impairments. A “severe impairment” must “significantly limit[]” the claimant’s “physical 26 27 or mental ability to do basic work activities. 20 C.F.R. 404.1520(c). An 28 impairment or combination of impairments may be found “not severe only if the ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~8 1 evidence establishes a slight abnormality that has no more than a minimal effect on 2 an individual’s ability to work.” Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 3 2005) (emphasis in original) (quoting Smolen v. Chater, 80 F.3d 1273, 1290 (9th 4 Cir. 1996)). Thus, “[t]he severity requirement cannot be satisfied when medical 5 evidence shows that the person has the ability to perform basic work activities, as 6 required in most jobs. Examples of these are walking, standing, sitting, lifting, 7 pushing, pulling, reaching, carrying or handling; seeing, hearing, and speaking; 8 understanding, carrying out, and remembering simple instructions; use of 9 judgment, responding appropriately to supervision, coworkers, and usual work 10 situations; and dealing with changes in a routine work setting.” S.S.R. 85–28. That 11 said, when assessing the severity of whatever impairments an individual may have, 12 the ALJ must assess the impact of the combination of those impairments on the 13 person’s ability to function, rather than assess separately the contribution of each 14 impairment existing alone. Id. If it is not clearly established by the medical 15 evidence that the claimant’s impairments, when considered in combination, are not 16 medically severe, the adjudication must continue through the sequential evaluation 17 process. Id. The Social Security Administration has instructed ALJ’s to exercise 18 great care” in applying the not severe impairment concept. Id. 19 Step two, then, is “a de minimis screening device [used] to dispose of 20 groundless claims,” Smolen, 80 F.3d at 1290. In determining whether the ALJ’s 21 step two analysis is correct, the court must determine whether the ALJ had 22 substantial evidence to find that the medical evidence clearly established that 23 Plaintiff does not have a medically severe impairment or combination of 24 impairments. Webb, 433 F.3d at 687. 25 The ALJ has an independent “duty to fully and fairly develop the record and 26 to assure that the claimant’s interests are considered. Smolen, 80 F.3d at 1288. 27 Ambiguous evidence, or the ALJ’s own finding that the record is inadequate to 28 allow for proper evaluation of the evidence, triggers the ALJ’s duty to “conduct an ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~9 1 appropriate inquiry. Id. 2 Here, substantial evidence does not support the ALJ’s determination that 3 Plaintiff was not suffering any medically determinable severe impairments. 4 Notably, Dr. Jahnke noted that she was not able to examine the x-rays so that she 5 could not find any medically-determinable impairments. AR37-42. Dr. Jahnke 6 indicated that she was unable to determine what was causing the reduced range of 7 motion of his right knee and hip, due to the lack of x-rays. Id. The ALJ and Dr. 8 Jahnke then speculated as to the cause of Plaintiff’s pain. Id. 9 The ALJ erred in failing to develop the record. See Tonapetyan v. Halter, 10 242 F.3d 1144, 1150 (9th Cir. 2001) (noting that even though the ALJ did not 11 specifically find that evidence was ambiguous, or that he lacked sufficient 12 evidence to render a decision, he relied heavily upon the testimony of the medical 13 expert who indicated the record was incomplete). Dr. Jahnke’s opinions were 14 unhelpful because she explicitly indicated that she needed to review x-rays before 15 she could opine about Plaintiff’s impairments. It was the ALJ’s duty to ensure that 16 the record contained the necessary x-rays so that Dr. Jahnke could provide an 17 informed decision. 18 Additionally, it does not appear that Dr. Toews properly considered Dr. 19 Genthe’s 2018 evaluation. Instead, he only focused on Dr. Chandler’s evaluation in 20 concluding that Plaintiff suffered mildly from mild adjustment disorder with mixed 21 depressed mood and anxiety. In contrast, Dr. Genthe found that Plaintiff presented 22 with a history of problematic personality traits that appeared to impact his daily 23 activities and level of functioning. Dr. Genthe concluded that Plaintiff was unlikely 24 to function adequately in a work setting until his psychological symptoms have 25 been managed more effectively. He based his conclusions on the results of a 26 Personality Assessment Inventory. Upon questioning, Dr. Toews stated that while 27 he considered Dr. Genthe’s opinion, he disagreed with his diagnosis. The Court is 28 not convinced that Dr. Toews adequately considered Dr. Genthe’s opinion in ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~10 1 forming his conclusions; thus, they are neither supportable nor consistent. Yet, the 2 ALJ found Dr. Toews’ opinion to be highly persuasive. This finding is not 3 supported by substantial evidence. 4 Additionally, Dr. Toews indicated that he did not review the complete 5 record, including Exhibit B3A. With respect to Exhibit B3A, Drs. John Gilbert, 6 Brown, and Wolfe concluded that Plaintiff had severe medically determinable 7 impairments, including fractures of EU, LE, as well as depressive disorders and 8 anxiety. These findings do not support the ALJ’s conclusion that Plaintiff does not 9 have any medically determinable severe impairments. Notably, the assessment 10 conducted by these doctors concluded that Plaintiff had exertional limitations, 11 which is explicit recognition that he is suffering from a medically determinable 12 impairment that has more than a minimal on Plaintiff’s ability to work. They noted 13 that Plaintiff has moderate limitations to complete a normal workday and 14 workweek and limitations in social interaction. Again, these findings do not 15 support the ALJ’s findings that Plaintiff was not suffering any medically 16 determinable severe impairment. 17 The ALJ erred in failing to recognize that the record supports the finding 18 that Plaintiff suffers from medically severe impairments and also erred in failing to 19 ensure the record was adequately developed. Consequently, it does not appear that 20 Plaintiff’s interests were adequately considered. As such, remand is appropriate to 21 permit the ALJ fully develop the record and to conduct a proper sequential 22 evaluation. 23 Accordingly, IT IS HEREBY ORDERED: 24 1. Plaintiff’s Motion for Summary Judgment, ECF No. 14, is 25 GRANTED. 26 2. Defendant’s Motion for Summary Judgment, ECF No. 15, is 27 DENIED. 28 3. The decision of the Commissioner is REVERSED and REMANDED ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~11 1 for proceedings consistent with this Order. 2 4. Judgment shall be entered in favor of Plaintiff and against Defendant. 3 IT IS SO ORDERED. The District Court Executive is hereby directed to 4 file this Order, provide copies to counsel, and close the file. 5 DATED this 27th day of September 2021. 6 7 8 9 10 11 Stanley A. Bastian Chief United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~12

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