Myrick v. Commissioner of Social Security, No. 4:2018cv05005 - Document 21 (E.D. Wash. 2019)
Court Description: ORDER Granting 15 Plaintiff's Motion for Summary Judgment, Denying 19 Defendant's Motion for Summary Judgment, and Remanding. Signed by Senior Judge Edward F. Shea. (PL, Case Administrator)
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Myrick v. Commissioner of Social Security Doc. 21 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 Mar 01, 2019 4 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 8 SCOTT M.,1 No. Plaintiff, 9 10 11 12 4:18-CV-5005-EFS v. NANCY A. BERRYHILL, Commissioner of Social Security, 13 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, AND REMANDING Defendant. 14 CLERK’S OFFICE ACTION REQUIRED 15 16 Before the Court, without oral argument, are cross-summary-judgment 17 motions, ECF Nos. 15 & 19. Plaintiff Scott M. appeals the Administrative Law 18 Judge’s (ALJ) denial of benefits.2 Plaintiff contends the ALJ: (1) erred in rejecting 19 the U.S. Department of Veteran Affairs’ (VA) finding that Plaintiff was disabled; 20 21 (2) improperly rejected the opinions of Plaintiff’s medical care providers; 22 (3) improperly rejected Plaintiff’s impairments at step two; (4) improperly rejected 23 lay witness testimony; (5) improperly rejected Plaintiff’s subjective complaints; and 24 25 1 26 2 To protect the privacy of social-security plaintiffs, the Court refers to them by first name and last initial. See LCivR 5.2(c). When quoting the Administrative Record in this order, the Court will substitute “Plaintiff” for any other identifier that was used. ECF No. 1. ORDER GRANTING PLAINTIFF’S SUMMARY JUDGMENT MOTION - 1 Dockets.Justia.com 1 (6) conducted an improper step five analysis.3 The Commissioner of Social Security 2 (“Commissioner”) asks the Court to affirm the ALJ’s decision. After reviewing the 3 record and relevant authority, the Court is fully informed. For the reasons set forth 4 below, the Court finds that the ALJ failed to provide persuasive, specific, valid 5 6 reasons, supported by substantial evidence to reject the VA’s disability 7 determination. Further, the Court cannot find that this was a harmless error. 8 Accordingly, the Court grant’s Plaintiff’s Motion for Summary Judgment, denies the 9 Commissioner’s Motion for Summary Judgment, and remands for further 10 proceedings. 11 I. Standard of Review 12 On review, the Court must uphold the ALJ’s determination that the claimant 13 14 is not disabled if the ALJ applied the proper legal standards and there is substantial 15 evidence in the record as a whole to support the decision.4 “Substantial evidence 16 means more than a mere scintilla, but less than a preponderance. It means such 17 relevant evidence as a reasonable mind might accept as adequate to support a 18 conclusion.”5 The Court will also uphold “such inferences and conclusions as the 19 [ALJ] may reasonably draw from the evidence.”6 20 21 In reviewing a denial of benefits, the Court considers the record as a whole, 22 not just the evidence supporting the ALJ’s decision.7 That said, the Court may not 23 3 24 4 25 5 26 6 7 ECF No. 15 at 5. Delgado v. Heckler, 722 F.2d 570, 572 (9th Cir. 1983) (citing 42 U.S.C. § 405(g)); Brawner v. Sec’y of Health & Human Servs., 839 F.2d 432, 433 (9th Cir. 1987). Desrosiers v. Sec’y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988) (citations and internal quotation marks omitted). Mark v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989). ORDER GRANTING PLAINTIFF’S SUMMARY JUDGMENT MOTION - 2 1 substitute its judgment for that of the Commissioner. If the evidence supports more 2 than one rational interpretation, a reviewing court must uphold the ALJ’s decision.8 3 Further, the Court “may not reverse an ALJ’s decision on account of an error that is 4 harmless.”9 An error is harmless “where it is inconsequential to the [ALJ’s] ultimate 5 6 nondisability determination,”10 and where the reviewing court “can confidently 7 conclude that no reasonable ALJ, when fully crediting the testimony, could have 8 reached a different disability determination.”11 9 II. Facts, Procedural History, and the ALJ’s Findings12 10 Plaintiff Scott M. is 57 years old and lives in West Richland, Washington. 11 Plaintiff filed an application for social security disability, dated September 1, 2013, 12 13 alleging a disability onset date of May 18, 2012.13 Plaintiff’s claim was initially 14 denied, and upon reconsideration, Plaintiff requested a hearing before an ALJ on 15 July 24, 2014, which was held on March 22, 2016.14 On June 27, 2016, the ALJ, 16 Tom L. Morris, rendered a decision denying Plaintiff’s claim.15 17 At step one,16 the ALJ found Plaintiff had not engaged in substantial gainful 18 activity since May 18, 2012, the alleged onset date.17 19 20 8 21 9 10 22 11 12 23 13 24 14 15 25 16 26 17 Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Id. at 1115 (quotations and citation omitted). Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015) (citation omitted). The facts are only briefly summarized. Detailed facts are contained in the administrative hearing transcript, the ALJ’s decision, and the parties’ briefs. AR 22. Id. AR 37. The applicable five-step disability determination process is set forth in the ALJ’s decision, AR 20– 21, and the Court presumes the parties are well acquainted with that standard process. As such, the Court does not restate the five-step process in this order. AR 24. ORDER GRANTING PLAINTIFF’S SUMMARY JUDGMENT MOTION - 3 1 At step two, the ALJ found Plaintiff had the following severe medical 2 impairments: disorders of the gastrointestinal system/gastroesophageal reflux 3 disorder (GERD); obesity; essential hyperextension; disorders [of] the muscles, 4 ligaments, and fascia; affective disorder; and anxiety disorder.18 5 At step three, the ALJ found that Plaintiff did not have an impairment that 6 7 met the severity of a listed impairment.19 8 At step four, the ALJ found that Plaintiff had the residual functional capacity 9 (RFC) to perform light work.20 He found that Plaintiff can occasionally lift and/or 10 carry 20 pounds and can frequently lift and/or carry 10 pounds.21 He can also stand 11 and/or walk with normal breaks for a total of about six hours in an eight-hour 12 13 workday, and can sit with normal breaks for the same.22 He would need to 14 periodically alternate standing with sitting, and can frequently climb ramps and 15 stairs.23 He could also occasionally climb ladders, ropes, and scaffolds, as well as 16 stoop, kneel, crouch, and crawl.24 The ALJ noted that he should avoid concentrated 17 exposure to extreme cold, vibration, and hazards such as dangerous machinery and 18 unprotected heights.25 19 The ALJ also found that Plaintiff is capable of unskilled, simple work tasks 20 21 and well-learned detailed tasks with customary breaks and lunch.26 He can have 22 18 23 19 20 24 21 22 25 23 24 26 25 26 Id. Id. AR 26. Id. Id. Id. Id. AR 26. AR 27. ORDER GRANTING PLAINTIFF’S SUMMARY JUDGMENT MOTION - 4 1 superficial interaction with coworkers, and there can be occasional material changes 2 to the work environment.27 The ALJ noted he may be off task about ten percent over 3 the course of an eight-hour workday.28 4 In reaching these conclusions, the ALJ found that Plaintiff’s medically 5 6 determinable impairments could reasonably be expected to cause the alleged 7 symptoms.29 However, the ALJ stated Plaintiff’s statements regarding the intensity, 8 persistence and limiting effects of those symptoms were not entirely consistent with 9 the evidence presented in the record.30 10 When determining Plaintiff’s RFC, the ALJ gave great weight to Dr. Olegario 11 Ignacio, who provided a Disability Determination Explanation, as well as the DDS 12 13 opinions of Dr. Leslie Postovoit and Dr. Patricia Kraft.31 He assigned little weight to 14 the report from Deloros Conrad, LICSW, and partial weight to the opinion of 15 Plaintiff’s mother.32 Finally, the ALJ assigned little to no weight to the VA’s 16 disability determination.33 17 At step five, the ALJ found Plaintiff was not able to perform any past relevant 18 work, including his experience as a procurement clerk and school bus driver.34 19 However, given his age, education, work experience, and RFC, the ALJ found that 20 21 there exist significant numbers of jobs that Plaintiff may perform.35 22 27 23 28 29 24 30 31 25 32 33 26 34 35 Id. Id. AR 28. Id. AR 32–33. AR 33–34. AR 34–35. AR 35. AR 36. ORDER GRANTING PLAINTIFF’S SUMMARY JUDGMENT MOTION - 5 1 The ALJ issued its decision to deny Plaintiff benefits on June 27, 2016.36 The 2 Appeals Council denied Plaintiff’s request for review,37 making the ALJ’s decision 3 the Commissioner’s final decision for the purposes of judicial review.38 Plaintiff filed 4 this lawsuit on January 5, 2018.39 5 III. 6 Applicable Law & Analysis A. The ALJ did not provide persuasive, specific, and valid reasons to 7 8 discount the VA’s disability determination. 9 Plaintiff argues that the ALJ erred in assigning “little to no weight” to the 10 VA’s determination that Plaintiff was 100% disabled, and that the ALJ failed to cite 11 persuasive and specific reasons to discount the determination.40 He states that the 12 13 VA’s finding was supported “by several hundred pages of medical records.”41 14 Defendant argues that the ALJ’s reasons were specific, valid, and supported by the 15 record 16 determinations.42 17 because he stated differences between VA and SSA disability The VA’s disability determination is not binding on an ALJ.43 However, an 18 ALJ must “ordinarily give great weight to a VA determination of disability.”44 45 The 19 20 36 37 21 38 39 22 40 41 23 42 43 24 44 45 25 26 AR 37. AR 1–3. See 42 U.S.C. § 1383(c)(3); 20 C.F.R. §§ 416.1481, 422.210. ECF No. 1. ECF No. 15 at 8–9. Id. ECF 19 at 15–18. 20 C.F.R. § 404.1504. McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002). The Court notes that 20 C.F.R. § 404.1504 has been amended in March, 2017 to read as follows: “[I]n claims filed . . . on or after March 27, 2017, we will not provide any analysis in our determination or decision about a decision made by any other governmental agency . . . about whether you are disabled . . . or entitled to benefits. However, we will consider all of the supporting evidence underlying the other governmental agency . . . decision that we receive as evidence in ORDER GRANTING PLAINTIFF’S SUMMARY JUDGMENT MOTION - 6 1 ALJ may assign less weight to the determination if he gives “persuasive, specific, 2 valid reasons for doing so that are supported by the record.”46 An ALJ’s rejection of 3 a VA disability rating “on the general ground that the VA and SSA disability 4 inquiries are different” is not a valid reason.47 5 On July 1, 2014, the VA issued a disability determination of 100% from 6 7 October 23, 2013 onward.48 The ALJ discounted this determination, and after 8 reciting several differences between the VA and SSA disability determinations, gave 9 only the following explanation: 10 Although they provided a basis for their determination, the VA did not provide an individualized assessment that focuses on a claimant’s ability to perform work in the national economy. Thus, I assign these numeric ratings little to no weight.49 11 12 13 14 This Court has previously found nearly identical language to be “little more 15 than generalized critiques,” and insufficient to show persuasive, valid reasons for 16 refusing to afford great weight to the determination.50 Instead, this comparison 17 merely and impermissibly distinguishes the VA determination from the SSA.51 18 19 20 21 22 23 46 24 48 47 49 25 50 26 51 your claim . . .” See also 20 C.F.R. § 416.904. However, because Plaintiff’s claim was filed prior to March 27, 2017, the ALJ was required to follow applicable regulations and precedent as stated. McCartey, 298 F.3d at 1076. Valentine v. Comm’r of Social Sec. Admin., 574 F.3d 685, 695 (9th Cir. 2009). AR 709. AR 35. The Court additionally notes that the ALJ did consider the VA medical records accompanying the disability determination. Id. See Parker v. Comm’r of Social Sec. Admin., No. 2:16-cv-0087-SMJ, 2017 WL 4158617 at *7–8 (E.D. Wash. Sep. 19, 2017). Valentine, 574 F.3d at 695. ORDER GRANTING PLAINTIFF’S SUMMARY JUDGMENT MOTION - 7 1 The Court cannot conclude that this error is harmless, therefore the Court 2 remands for additional proceedings.52 The VA determination may have been an 3 important factor in determining Plaintiff’s RFC, therefore further administrative 4 proceedings are required to fully develop the record.53 Because the Court cannot say 5 6 with certainty that no reasonable ALJ could reach a different conclusion if this 7 evidence were considered,54 the Court instructs the ALJ to reconsider the VA 8 disability determination on remand. 9 B. The ALJ must evaluate Plaintiff’s subjective symptom statements and 10 medical and non-medical providers on remand. 11 The evaluation of a claimant’s symptom statements and their resulting 12 13 limitations relies, in part, on the assessment of medical evidence, as well as the 14 opinions of medical and non-medical sources.55 Therefore, in light of a remand for 15 the ALJ to address the VA disability determination, the ALJ should conduct a new 16 assessment of Plaintiff’s subjective symptom statements and of the opinions of 17 Plaintiff’s medical or non-medical sources when determining Plaintiff’s RFC. The 18 Court therefore declines to rule on the remaining issues Plaintiff raises at this time. 19 IV. 20 Conclusion 21 The ALJ improperly discounted the VA’s disability determination. Thus, for 22 the reasons discussed above, the Court reverses the ALJ’s decision and remands for 23 52 24 25 26 53 54 55 See Treichler v. Comm’r of Social Sec. Admin., 775 F.3d 1090, 1099–1102 (9th Cir. 2014) (absent rare circumstances, remand for additional proceedings is appropriate in the instance of harmful error). See id. at 1101 (where “not all essential factual issues have been resolved, a remand for an award of benefits is inappropriate”) (citations omitted). See Marsh, 792 F.3d at 1173. 20 C.F.R. § 404.1529(c). ORDER GRANTING PLAINTIFF’S SUMMARY JUDGMENT MOTION - 8 1 the ALJ to reconsider the VA disability determination and conduct any additional 2 proceedings, including further development of the record, as he sees fit. 3 Accordingly, IT IS HEREBY ORDERED: 4 1. Plaintiff’s Motion for Summary Judgment, ECF No. 15, is GRANTED. 2. The Commissioner’s Motion for Summary Judgment, ECF No. 19, is 5 6 DENIED. 7 8 3. 9 This case is REMANDED to the Commissioner of Social Security pursuant to 42 U.S.C. § 405(g) for further proceedings consistent with 10 this Order. 11 4. JUDGMENT is to be entered in the Plaintiff’s favor. 5. The case shall be CLOSED. 12 13 14 15 16 IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order and provide copies to all counsel. DATED this 1st day of March 2019. 17 18 19 s/Edward F. Shea EDWARD F. SHEA Senior United States District Judge 20 21 22 23 24 25 26 Q:\EFS\Civil\2018\18-5005;Scott M.SS Order Grant P MSJ.LC01.docx ORDER GRANTING PLAINTIFF’S SUMMARY JUDGMENT MOTION - 9
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