Jones v. Commissioner of Social Security, No. 4:2018cv05048 - Document 23 (E.D. Wash. 2019)

Court Description: ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; granting in part ECF No. 17 Motion for Summary Judgment; denying ECF No. 21 Motion for Summary Judgment. The matter is REMANDED to the Commissioner for additional proceedings consistent with this Order. FILE CLOSED. Signed by Magistrate Judge John T. Rodgers. (TR, Case Administrator)

Download PDF

Jones v. Commissioner of Social Security Doc. 23 1 2 3 4 5 6 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF WASHINGTON Feb 11, 2019 SEAN F. MCAVOY, CLERK 10 11 JESSICA J., 12 No. 4:18-CV-05048-JTR Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 13 v. 14 15 16 COMMISSIONER OF SOCIAL SECURITY, 17 Defendant. 18 19 BEFORE THE COURT are cross-motions for summary judgment. ECF 20 Nos. 17, 21. Attorney D. James Tree represents Jessica J. (Plaintiff); Special 21 Assistant United States Attorney Benjamin J. Groebner represents the 22 Commissioner of Social Security (Defendant). The parties have consented to 23 proceed before a magistrate judge. ECF No. 7. After reviewing the administrative 24 record and briefs filed by the parties, the Court GRANTS, in part, Plaintiff’s 25 motion for summary judgment and DENIES Defendant’s motion for summary 26 judgment. 27 JURISDICTION 28 Plaintiff filed an application for Supplemental Security Income (SSI) on ORDER GRANTING PLAINTIFF’S MOTION - 1 Dockets.Justia.com 1 June 22, 2011, Tr. 75, 223, alleging disability since June 1, 2007, Tr. 216, due to 2 depression, anxiety, post-traumatic stress disorder (PTSD), fibromyalgia, lupus, 3 herniated disk in her neck, and a sphincter of Oddi dysfunction, Tr. 283. The 4 application was denied initially and upon reconsideration. Tr. 106-13, 117-23. 5 Administrative Law Judge (ALJ) Virginia M. Robinson held a hearing on January 6 15, 2013 and heard testimony from Plaintiff and vocational expert Trevor Duncan. 7 Tr. 34-71. At the hearing, Plaintiff requested that the ALJ consider a closed period 8 of disability from July 2008 through or up to August 2012 because Plaintiff had 9 been hired as a cook at a treatment center in August of 2012 and was working. Tr. 10 38-39. The ALJ issued an unfavorable decision on March 22, 2013 finding 11 Plaintiff had not been under a disability, as defined in the Social Security Act, 12 since the application was filed on June 22, 2011. Tr. 14-28. The Appeals Council 13 denied review on April 28, 2014. Tr. 1-3. The ALJ’s March 22, 2013 decision 14 became the final decision of the Commissioner, which was appealed to this Court 15 on June 30, 2014. Tr. 948-50. On April 8, 2015, this Court remanded the case for 16 additional proceedings. Tr. 960-84. 17 While the 2011 application was pending before this Court, Plaintiff filed a 18 subsequent application for SSI benefits on August 4, 2014, Tr. 990, alleging 19 disability beginning on June 6, 2013, Tr. 1153. This subsequent application was 20 denied initially and at reconsideration. Tr. 1048-51, 1053-62. 21 On August 11, 2015, the Appeals Council remanded the 2011 application to 22 the ALJ for additional proceedings and consolidated the 2011 application and the 23 subsequent application into a single record. Tr. 988. The ALJ held a hearing on 24 the consolidated claims on January 20, 2017 and heard testimony from Plaintiff 25 and vocational expert Kimberly Mullinax. Tr. 876-918. On January 11, 2018, the 26 ALJ issued an unfavorable decision. Tr. 796-812. The Appeals Council did not 27 assume jurisdiction within the prescribed period so the ALJ’s January 11, 2018 28 decision became the final decision of the Commissioner and is appealable to the ORDER GRANTING PLAINTIFF’S MOTION - 2 1 district court pursuant to 42 U.S.C. §§ 405(g), 1383(c). 20 C.F.R. § 416.1484(c). 2 Plaintiff initiated this action on March 26, 2018. ECF Nos. 1, 4. 3 STATEMENT OF FACTS The facts of the case are set forth in the administrative hearing transcript, the 4 5 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 6 here. 7 Plaintiff was 41 years old at the date of filing. Tr. 215. She reported that the 8 last grade she completed was the eighth and that she had attended special education 9 classes. Tr. 284. Her reported work history includes the jobs of commercial truck 10 driver and deli and seafood clerk. Id. When applying for benefits Plaintiff 11 reported that she stopped working on July 16, 2008 because she was fired, but that 12 her condition was severe enough to keep her from working as of June 1, 2007. Tr. 13 283. 14 15 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 16 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 17 1039 (9th Cir. 1995). The Court reviews the ALJ’s determinations of law de novo, 18 deferring to a reasonable interpretation of the statutes. McNatt v. Apfel, 201 F.3d 19 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is 20 not supported by substantial evidence or if it is based on legal error. Tackett v. 21 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as 22 being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put 23 another way, substantial evidence is such relevant evidence as a reasonable mind 24 might accept as adequate to support a conclusion. Richardson v. Perales, 402 25 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational 26 interpretation, the court may not substitute its judgment for that of the ALJ. 27 Tackett, 180 F.3d at 1097. If substantial evidence supports the administrative 28 findings, or if conflicting evidence supports a finding of either disability or non- ORDER GRANTING PLAINTIFF’S MOTION - 3 1 disability, the ALJ’s determination is conclusive. Sprague v. Bowen, 812 F.2d 2 1226, 1229-30 (9th Cir. 1987). Nevertheless, a decision supported by substantial 3 evidence will be set aside if the proper legal standards were not applied in 4 weighing the evidence and making the decision. Brawner v. Secretary of Health 5 and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). SEQUENTIAL EVALUATION PROCESS 6 7 The Commissioner has established a five-step sequential evaluation process 8 for determining whether a person is disabled. 20 C.F.R. § 416.920(a); see Bowen 9 v. Yuckert, 482 U.S. 137, 140-42 (1987). In steps one through four, the burden of 10 proof rests upon the claimant to establish a prima facie case of entitlement to 11 disability benefits. Tackett, 180 F.3d at 1098-99. This burden is met once the 12 claimant establishes that physical or mental impairments prevent her from 13 engaging in her previous occupations. 20 C.F.R. § 416.920(a)(4). If the claimant 14 cannot do her past relevant work, the ALJ proceeds to step five, and the burden 15 shifts to the Commissioner to show that (1) the claimant can make an adjustment to 16 other work, and (2) specific jobs which the claimant can perform exist in the 17 national economy. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193-94 18 (9th Cir. 2004). If the claimant cannot make an adjustment to other work in the 19 national economy, a finding of “disabled” is made. 20 C.F.R. § 416.920(a)(4)(v). ADMINISTRATIVE DECISION 20 21 On January 11, 2018, the ALJ issued a decision finding Plaintiff was not 22 disabled as defined in the Social Security Act from June 22, 2011 through the date 23 of the decision. 24 At step one, the ALJ found Plaintiff had engaged in substantial gainful 25 activity (SGA) from August 3, 2012 to June 19, 2013. Tr. 799. However, since 26 there was a continuous 12-month period during which Plaintiff did not engage in 27 SGA, the ALJ continued the sequential evaluation process. Id. 28 At step two, the ALJ determined that Plaintiff had the following severe ORDER GRANTING PLAINTIFF’S MOTION - 4 1 impairments: degenerative disc disease; degenerative joint disease of the left knee; 2 fibromyalgia; asthma; disorder of the muscle, ligament, and fascia; affective 3 disorders; anxiety disorders; personality disorders; and eating disorders. Tr. 733. 4 At step three, the ALJ found that Plaintiff did not have an impairment or 5 combination of impairments that met or medically equaled the severity of one of 6 the listed impairments. Tr. 800. 7 8 9 10 11 12 13 14 15 16 17 At step four, the ALJ assessed Plaintiff’s residual function capacity and determined she could perform a range of light work with the following limitations: lift and or carry up to 20 pounds occasionally and up to 10 pounds frequently; she can stand and or walk for approximately 6 hours and sit for approximately 6 hours per 8-hour workday with normal breaks; she can frequently climb ramps and stairs; she can occasionally climb ladders, ropes, and scaffolds; she can frequently stoop, kneel, crouch, or crawl; she is limited to frequent fingering; she must avoid concentrated exposure to excessive vibration, exposure to pulmonary irritants such as fumes and gases and work place hazards such as unprotected heights; she is limited to simple routine tasks, in a routine work environment with simple work related decisions; she is limited to superficial interaction with coworkers and incidental interaction with the public, no interaction with the public as part of required duties. 18 19 Tr. 801-02. The ALJ identified Plaintiff’s past relevant work as tractor-trailer 20 truck driver, cafeteria cook, and kitchen helper and concluded that Plaintiff was not 21 able to perform this past relevant work. Tr. 810-11. 22 At step five, the ALJ determined that, considering Plaintiff’s age, education, 23 work experience and residual functional capacity, and based on the testimony of 24 the vocational expert, there were other jobs that exist in significant numbers in the 25 national economy Plaintiff could perform, including the jobs of production 26 assembler, housekeeping cleaner, and packing line worker. Tr. 811-12. The ALJ 27 concluded Plaintiff was not under a disability within the meaning of the Social 28 Security Act at any time from June 22, 2011 through the date of the decision. Tr. ORDER GRANTING PLAINTIFF’S MOTION - 5 1 812. 2 ISSUES The question presented is whether substantial evidence supports the ALJ’s 3 4 decision denying benefits and, if so, whether that decision is based on proper legal 5 standards. Plaintiff contends the ALJ erred by (1) finding Plaintiff had engaged in 6 SGA at step one, (2) failing to address Plaintiff’s right knee impairment at step 7 two, (3) failing to properly weigh the medical opinions, (4) failing to properly 8 consider lay witness testimony, and (5) failing to properly address Plaintiff’s 9 symptom statements. DISCUSSION1 10 11 12 1. Step One Plaintiff argues that the work she performed from August of 2012 to June of 13 2013 should not qualify as SGA because she was receiving accommodations that 14 equated to a sheltered or special work environment. ECF No. 17 at 5-7. In the 15 alternative, Plaintiff argues that nine months of the work qualifies as a trial work 16 period and the period she worked beyond nine months was still within her 17 extended period of eligibility. ECF No. 17 at 8. 18 At step one, the ALJ determines if a claimant is working and whether that 19 work amounts to SGA. 20 C.F.R. § 416.920(a)(4)(i). If a claimant is working and 20 that work is deemed to be SGA, that individual is found not disabled. 20 C.F.R. § 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 - 6 1 416.920(b). If a claimant is working as an employee, her earnings show whether 2 she has performed SGA. 20 C.F.R. § 416.974(a)(1). A claimant’s average 3 monthly earnings exceeding the SGA benchmark show that the claimant is 4 performing SGA. 20 C.F.R. § 416.974(b). In 2012, an average monthly earnings 5 above $1,010.00 demonstrated SGA. POMS DI 10501.015. Likewise, in 2013, an 6 average monthly earnings above $1,040.00 demonstrated SGA. Id. 7 From August of 2012 to June of 2013, Plaintiff was employed at Yakima 8 Valley Council on Alcoholism, and her earnings averaged $1,120.46 a month in 9 2012 ($5,602.32 divided by 5 months) and $1,746.78 a month in 2013 ($10,480.68 10 divided by six months). Tr. 1149. However, earnings exceeding the SGA bench mark does not necessarily 11 12 equate to performing SGA. The ALJ and Plaintiff have addressed three ways in 13 which a person’s work above the SGA benchmark may not be evidence of SGA: 14 (1) an unsuccessful work attempt; (2) sheltered or special environment; and (3) a 15 trial work period followed by extended period of eligibility. Tr. 799; ECF No. 17 16 at 5-8. 17 First, the ALJ considered whether Plaintiff’s work could be considered an 18 unsuccessful work attempt in her decision; she found that Plaintiff’s work did not 19 qualify as an unsuccessful work attempt. Tr. 799. An unsuccessful work attempt 20 is work lasting up to six months that the claimant had to stop or reduce to below 21 SGA levels because of an impairment. 20 C.F.R. § 416.974(c)(1). Earnings from 22 an unsuccessful work attempt are not considered when determining whether or not 23 work is SGA at step one. 20 C.F.R. § 416.974(a)(1). Here, Plaintiff’s employment 24 at SGA levels exceeded six months. Tr. 1149, 1259. Therefore, the work does not 25 qualify as an unsuccessful work attempt, 20 C.F.R. § 416.974(c)(4), and the ALJ 26 did not err in her determination. 27 28 Second, Plaintiff argues that she received accommodations at this job that resulted in the work qualifying as a sheltered or special environment. ECF No. 17 ORDER GRANTING PLAINTIFF’S MOTION - 7 1 at 5-7. The calculation of SGA only considers the earnings an employee claimant 2 actually earns. 20 C.F.R. § 416.974(a)(1). If a claimant is working in a sheltered 3 workshop “you may or may not be earning the amounts you are being paid. The 4 fact that sheltered workshop or similar facility is operating at a loss or is receiving 5 some charitable contributions or governmental aid does not establish that you are 6 earning all you are being paid.” 20 C.F.R. § 416.974(a)(3). “Sheltered 7 employment is employment provided for individuals with disabilities in a protected 8 environment under an institutional program.” POMS DI 10505.025D. “An 9 employee working in a sheltered workshop or comparable facility for severely 10 impaired persons will ordinarily be considered not engaged in SGA if the 11 employee’s ‘countable earnings’ do not average more than the amount shown in 12 the Earnings Guidelines (DI 10501.015).” Id. If a claimant is working under 13 special conditions that take into account her impairments, the work may not 14 demonstrate SGA. 20 C.F.R. § 416.973(c). Examples of special conditions 15 include assistance from other employees in performing the work, allowed to work 16 irregular hours or take frequent rest periods, provided special equipment, assigned 17 work especially suited to the impairment, arranged special circumstances, 18 permitted to work at a lower standard of productivity or efficiency, or given work 19 because of a family relationship or past association with the employer. Id. 20 Plaintiff argues that because she was allowed to take a lot of time off and 21 have another employee cover for her, her work falls under the special conditions 22 addressed in 20 C.F.R. § 416.973(c). ECF No. 17 at 6-7. There is no evidence that 23 the treatment facility received subsidies for employing Plaintiff or that it was an 24 institutional program. Therefore, the work does not qualify as sheltered work. 25 While Plaintiff presents evidence of being allowed to take additional time off, there 26 is no evidence that these potential special conditions demonstrate that Plaintiff did 27 not earn her wages. In Plaintiff’s performance review, it was noted that she was 28 missing work, but that she had a legitimate reason and provided proper notice. Tr. ORDER GRANTING PLAINTIFF’S MOTION - 8 1 1187. It also noted that she met or exceeded expectations in all of the areas of 2 review. Id. There is no evidence that allowances were made to the extent that 3 Plaintiff did not earn her wages. 4 Third, Plaintiff argues that the work should be considered a trial work period 5 followed by an extended period of eligibility. A trial work period allows a 6 claimant to test her ability to work while still being considered disabled. 20 C.F.R. 7 § 404.1592(a). A claimant can test her ability to perform work for up to nine 8 months. Id. Earnings exceeding $720.00 a month in 2012 and $750.00 a month in 9 2013 count towards the nine months of the allowed trial work period. 20 C.F.R. § 10 404.1592(b); Monthly Earnings That Trigger a Trial Work Period, 11 https://www.ssa.gov/oact/cola/twp.html (last viewed Oct. 11, 2018). Following a 12 trial work period, a claimant enters the reentitlement period, also known as the 13 extended period of eligibility. 20 C.F.R. § 404.1592a; POMS DI 13010.210. This 14 is a 36 month period in which a claimant may continue to test her ability to work, 15 but if a claimant stops earning SGA, benefits are reinstated without the need to file 16 a new application. 20 C.F.R. § 404.1592a(a). Plaintiff’s argument cannot succeed 17 because the trial work period and the extended period of eligibility only apply to 18 applications for Social Security Disability Insurance benefits under Title II and 19 Plaintiff has filed an application for SSI benefits under Title XVI. See 20 C.F.R. § 20 404.1 (“The regulations in this part 404 . . . relate to the provisions of title II of the 21 Social Security Act . . .”). 22 In conclusion, the ALJ did not err in her determination that Plaintiff had 23 engaged in SGA from August 2012 to June 2013 based on the evidence in the 24 record and the arguments made by the parties.2 25 26 2 The Court acknowledges that there are post eligibility earnings rules in SSI 27 cases that may or may not be applicable to the period in question based an initial 28 finding of eligibility at either the alleged onset date or application date. See POMS ORDER GRANTING PLAINTIFF’S MOTION - 9 1 2 3 2. Step Two Plaintiff challenges the ALJ’s step two determination asserting that the ALJ erred by failing to address her right knee impairment. ECF No. 17 at 8-9. 4 Step-two of the sequential evaluation process requires the ALJ to determine 5 whether or not the claimant “has a medically severe impairment or combination of 6 impairments.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (citation 7 omitted). “An impairment or combination of impairments can be found ‘not 8 severe’ only if the evidence establishes a slight abnormality that has ‘no more than 9 a minimal effect on an individual[’]s ability to work.’” Id. at 1290. The step-two 10 11 analysis is “a de minimis screening device to dispose of groundless claims.” Id. In her step two determination, the ALJ addressed Plaintiff’s left knee finding 12 that her degenerative joint disease of the left knee was a severe impairment. Tr. 13 799. Additionally, the ALJ discussed Plaintiff’s obesity, endometriosis, 14 gastroesophageal reflux disease, lupus, carpal tunnel syndrome, and sleep disorder, 15 but found these were not severe impairments. Tr. 800. Nowhere in the decision 16 did the ALJ discuss Plaintiff’s right knee impairment. 17 As early as 2009, Plaintiff complained of her knees bothering her. Tr. 545. 18 During an evaluation in August of 2014, the provider observed bilateral knee 19 swelling. Tr. 1393. A March 12, 2015 x-ray showed bilateral mild to early 20 moderate narrowing of the medial femorotibial compartments with mild bone 21 sclerosis and small marginal spurs, small marginal spurs along proximal lateral 22 tibias, and mild lateral patellofemoral joint space narrowing with small adjacent 23 spurs. Tr. 1672. The impression following the imaging was bilateral osteoarthritic 24 changes. Id. This is objective evidence of an impairment in both knees. 25 Additionally, on April 21, 2015 and October 7, 2015 examinations of the right 26 27 SI 02301.215. However, none of these arguments were presented to the Court, so 28 they will not be addressed in this determination. ORDER GRANTING PLAINTIFF’S MOTION - 10 1 knee demonstrated mild crepitus, mild compression pain, a good range of motion, 2 and decreased strength in the quadriceps and hip abduction. Tr. 1646, 1649. She 3 received a Depo-Medrol injection in the right knee joint. Tr. 1646. 4 There is some objective evidence that Plaintiff’s knee impairment is present 5 bilaterally. Since the case is being remanded to address the opinion evidence, see 6 infra., the ALJ will address both Plaintiff’s left knee and right knee impairments at 7 step two. 8 3. 9 Medical Opinions Plaintiff argues that the ALJ failed to properly consider and weigh the 10 opinions expressed by Jan M. Kouzes, Ed.D., N.K. Marks, Ph.D., Mark Duris, 11 Ph.D., Pamela Miller, Ph.D., Leslie Postovoit, Ph.D., Eugene Kester, Ph.D., 12 Matthew Comrie, Psy.D., and Ben Pate, PA-C. ECF No. 17 at 9-19. 13 In weighing medical source opinions, the ALJ should distinguish between 14 three different types of physicians: (1) treating physicians, who actually treat the 15 claimant; (2) examining physicians, who examine but do not treat the claimant; 16 and, (3) nonexamining physicians who neither treat nor examine the claimant. 17 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). The ALJ should give more 18 weight to the opinion of a treating physician than to the opinion of an examining 19 physician. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). Likewise, the ALJ 20 should give more weight to the opinion of an examining physician than to the 21 opinion of a nonexamining physician. Id. 22 When an examining physician’s opinion is not contradicted by another 23 physician, the ALJ may reject the opinion only for “clear and convincing” reasons, 24 and when an examining physician’s opinion is contradicted by another physician, 25 the ALJ is only required to provide “specific and legitimate reasons” to reject the 26 opinion. Lester, 81 F.3d at 830-31. The specific and legitimate standard can be 27 met by the ALJ setting out a detailed and thorough summary of the facts and 28 conflicting clinical evidence, stating her interpretation thereof, and making ORDER GRANTING PLAINTIFF’S MOTION - 11 1 findings. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The ALJ is 2 required to do more than offer her conclusions, she “must set forth [her] 3 interpretations and explain why they, rather than the doctors’, are correct.” 4 Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). 5 A. Jan M. Kouzes, Ed.D. 6 On June 2, 2011, Dr. Kouzes completed a Psychological/Psychiatric 7 Evaluation form for the Washington Department of Social and Health Services 8 (DSHS). Tr. 457-62. At the time of the evaluation, Plaintiff reported that she had 9 left Canada the week prior and was living in her car. Tr. 459. She diagnosed 10 Plaintiff with major depressive disorder, PTSD, and borderline personality 11 disorder. Id. She opined that Plaintiff had a marked limitation in the abilities to be 12 aware of normal hazards and take appropriate precautions, to communicate and 13 perform effectively in a work setting with public contact, and to maintain 14 appropriate behavior in a work setting. Tr. 460. She opined Plaintiff had a 15 moderate limitation in the abilities to learn new tasks, to perform routine tasks 16 without undue supervision, and to communicate and perform effectively in a work 17 setting with limited public contact. Tr. 459-60. Dr. Kouzes estimated that Plaintiff 18 would have this level of impairment for a minimum of twelve months and a 19 maximum of twenty-four months. Tr. 460. 20 21 22 23 24 25 26 27 28 The ALJ gave the opinion “some but limited weight” and provided the following explanation: she was dealing with significant stressors at the time of the evaluation per her report including living in her car since relocating from Canada one week prior. She was also not actively engaged in mental health treatment or taking any medications at that time. These factors undercut the reliability of her opinion. As discussed, the claimant’s symptoms improved with medication and decreased stressors. Tr. 807. The explanation provided by the ALJ fails to meet the specific and ORDER GRANTING PLAINTIFF’S MOTION - 12 1 legitimate standard required to reject the opinion of an examining psychologist. 2 The ALJ failed to provide any example or citation to the record demonstrating that 3 Plaintiff improved with medication and decreased stressors. The ALJ’s ambiguous 4 reference to “As discussed,” could be seen as a reference to the credibility analysis 5 previously in the decision in which she provided citations to the record that she 6 found showed improvement in Plaintiff’s mental health impairments. Tr. 805-06. 7 The earliest evidence of improvement the ALJ referenced was Plaintiff’s work 8 beginning in August of 2012. Tr. 805. The remainder of the citations to the 9 medical evidence were from February 2014 to December of 2016. Tr. 805-06. Dr. 10 Kouzes opined that Plaintiff’s marked and moderate limitations would persist for 11 twelve to twenty-four months. Tr. 460. Plaintiff’s work beginning in August of 12 2012 was fourteen months after Dr. Kouzes’ opinion and the medical evidence 13 cited is beyond the maximum projection of twenty-four months. Therefore, the 14 ALJ failed to provide any specific reason why Dr. Kouzes’ opinion was not 15 reliable at least for the first twelve months she opined that it would persist. As 16 such, the ALJ’s explanation is insufficient to support her treatment of the opinion. 17 Therefore, the case is remanded for the ALJ to properly address Dr. Kouzes’ 18 opinion. 19 B. 20 On February 25, 2016, Dr. Marks completed a Psychological/Psychiatric N.K. Marks, Ph.D. 21 Evaluation for DSHS. Tr. 1653-59. He diagnosed Plaintiff with marked 22 limitations in the ability to perform activities within a schedule, maintain regular 23 attendance, and be punctual within customary tolerances without special 24 supervision, to adapt to changes in a routine work setting, to communicate and 25 perform effectively in a work setting, to maintain appropriate behavior in a work 26 setting, to complete a normal work day and work week without interruptions from 27 psychologically based symptoms, and to set realistic goals and plan independently. 28 Tr. 1657. He opined she had a moderate limitation in an additional six areas of ORDER GRANTING PLAINTIFF’S MOTION - 13 1 functioning. Id. He estimated that Plaintiff’s limitations would persist with 2 available treatment for twelve months. Id. 3 The ALJ gave his opinion “some but limited weight,” specifically rejecting 4 the marked limitations Dr. Marks provided. Tr. 808. She rejected these limitations 5 because Dr. Marks included a disclosure at the beginning of his evaluation and 6 because the marked limitations were inconsistent with the overall medical evidence 7 of record giving the example of Plaintiff’s ability to work as a cook and the fact 8 that she “exceeded expectations” in the categories of dependability, customer 9 service, quality, quantity, and problem solving. Id. 10 The ALJ’s rationale for rejecting the marked limitation does not meet the 11 specific and legitimate standard. First, the disclaimer at the beginning of the 12 evaluation is not affirmative evidence that Plaintiff misrepresented her symptoms. 13 The disclaimer reads as follows: 14 15 16 17 18 19 20 21 22 Please note: this evaluation was conducted to determine qualification for Washington State HEN, TANF, or ABD programs. While every effort is made to insure accuracy, it is based on client self-report and clinical presentation at the time of the interview. Other records may or may not have been available for review. As a result, there is always the chance that factors such as criminal history or substance abuse may have been underreported. The reader is advised that client presentation may differ from situation to situation and the most accurate diagnostics are based on several observations over time and in multiple settings. As such, other sources of information in addition to this report should be considered, when available, to give the most accurate clinical picture of and prognosis for the individual. 23 24 Tr. 1653-54. Without looking beyond the existence of the disclaimer and citing 25 evidence that the opinion was unreliable, this reason fails to meet the specific and 26 legitimate standard. See Magallanes, 881 F.2d at 751 (The specific and legitimate 27 standard can be met by the ALJ setting out a detailed and thorough summary of the 28 facts and conflicting clinical evidence, stating her interpretation thereof, and ORDER GRANTING PLAINTIFF’S MOTION - 14 1 making findings.); see Lester, 81 F.3d at 630 (“the purpose for which medical 2 reports are obtained does not provide a legitimate basis for rejecting them.”) 3 The ALJ’s second reason, that the opinion was inconsistent with the medical 4 evidence of record, is also not specific and legitimate. While an opinion’s 5 inconsistency with the medical evidence is a specific and legitimate reason for 6 rejecting the opinion, Batson, 359 F.3d at 1195, the ALJ failed to specifically set 7 forth any medical evidence that was inconsistent with Dr. Marks’ opinion. Instead, 8 the ALJ cited to Plaintiff’s work history, Tr. 808, which is not medical evidence. 9 Furthermore, the evidence from Plaintiff’s work performance is not inconsistent 10 with Dr. Marks’ opinion. The ALJ cited to a nine month performance review 11 from her job in which she received a scoring of “Meets Expectations” or “Exceeds 12 Expectations” in all competencies addressed. Tr. 808 (citing Tr. 1187). What the 13 ALJ does not address is the termination letter sent just three months later which 14 details multiple occasions when Plaintiff’s work performance demonstrated the 15 very limitations Dr. Marks opined. In March and June of 2013, Plaintiff yelled at 16 co-workers. Tr. 1185. The letter states “Your behavior has been so unpredictable 17 and erratic to staff that they feel they need to have a phone nearby to call for help if 18 needed.” Tr. 1186. Plaintiff had received repeated coaching for issues such as 19 professional behavior, work choices, and tone. Id. She received a written warning 20 about her yelling and failure to maintain a safe working environment. Id. She was 21 given a training plan and a packet of trainings and failed to complete them. Id. 22 Therefore, upon remand the ALJ will readdress Dr. Marks’ opinion. 23 C. Remaining Opinions 24 Plaintiff has also challenged the opinions of Dr. Duris, Dr. Miller, Dr. 25 Postovoit, Dr. Kester, Dr. Comrie, PA Pate. However, considering the case is 26 being remanded for the ALJ to address the opinions of Dr. Kouzes and Dr. Marks, 27 the ALJ will readdress all the medical opinions in the record upon remand. 28 The Court also notes that the ALJ failed to discuss the opinion of reviewing ORDER GRANTING PLAINTIFF’S MOTION - 15 1 psychologist Brian VanFossen, Ph.D. Tr. 1644-45. The ALJ shall also address 2 this opinion on remand. 3 4. Lay Witness Testimony 4 The record contains evidence submitted by Plaintiff’s boyfriend, Norman 5 Landry, partner David Goodger, and sister Betty Borchers. Tr. 255-63, 313-20, 6 1286-94, 1359 Lay witness testimony is “competent evidence” as to “how an impairment 7 8 affects [a claimant’s] ability to work.” Stout v. Comm’r, Soc. Sec. Admin., 454 9 F.3d 1050 (9th Cir. 2006); see also Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th 10 Cir. 1993) (“[F]riends and family members in a position to observe a claimant’s 11 symptoms and daily activities are competent to testify as to her condition.”). An 12 ALJ must give “germane” reasons to discount evidence from such “other sources.” 13 Dodrill, 12 F.3d at 919. The ALJ rejected statements from these lay witnesses because their 14 15 observations were similar to Plaintiff’s subjective complaints; therefore, she 16 assigned them little weight for the same reasons she rejected Plaintiff’s subjective 17 complaints. Tr. 810. The Ninth Circuit has found that lay witness testimony 18 which mirrors the claimant’s unreliable testimony can be rejected: “Where lay 19 witness testimony does not describe any limitations not already described by the 20 claimant, and the ALJ’s well-supported reasons for rejecting the claimant’s 21 testimony apply equally well to the lay witness testimony.” Molina v. Astrue, 674 22 F.3d 1104, 1117 (9th Cir. 2012). However, the ALJ is instructed to readdress 23 Plaintiff’s symptom statements upon remand. See infra. Therefore, the ALJ will 24 also readdress the lay witness testimony in the record. 25 5. 26 Plaintiff’s Symptom Statements Plaintiff contests the ALJ’s determination that her symptom statements were 27 not consistent with the medical evidence and other evidence in the record. ECF 28 No. 17 at 20-23. ORDER GRANTING PLAINTIFF’S MOTION - 16 1 It is generally the province of the ALJ to make credibility determinations, 2 Andrews, 53 F.3d at 1039, but the ALJ’s findings must be supported by specific 3 cogent reasons, Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent 4 affirmative evidence of malingering, the ALJ’s reasons for rejecting the claimant’s 5 testimony must be “specific, clear and convincing.” Smolen, 80 F.3d at 1281; 6 Lester, 81 F.3d at 834. “General findings are insufficient: rather the ALJ must 7 identify what testimony is not credible and what evidence undermines the 8 claimant’s complaints.” Lester, 81 F.3d at 834. 9 The evaluation of a claimant’s symptom statements and their resulting 10 limitations relies, in part, on the assessment of the medical evidence. See 20 11 C.F.R. § 416.929(c); S.S.R. 16-3p. Therefore, in light of the case being remanded 12 for the ALJ to address the medical source opinions in the record, a new assessment 13 of Plaintiff’s subjective symptom statements is also required. 14 REMEDY 15 The decision whether to remand for further proceedings or reverse and 16 award benefits is within the discretion of the district court. McAllister v. Sullivan, 17 888 F.2d 599, 603 (9th Cir. 1989). An immediate award of benefits is appropriate 18 where “no useful purpose would be served by further administrative proceedings, 19 or where the record has been thoroughly developed,” Varney v. Secretary of Health 20 & Human Servs., 859 F.2d 1396, 1399 (9th Cir. 1988), or when the delay caused 21 by remand would be “unduly burdensome,” Terry v. Sullivan, 903 F.2d 1273, 1280 22 (9th Cir. 1990); see also Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014) 23 (noting that a district court may abuse its discretion not to remand for benefits 24 when all of these conditions are met). This policy is based on the “need to 25 expedite disability claims.” Varney, 859 F.2d at 1401. But where there are 26 outstanding issues that must be resolved before a determination can be made, and it 27 is not clear from the record that the ALJ would be required to find a claimant 28 disabled if all the evidence were properly evaluated, remand is appropriate. See ORDER GRANTING PLAINTIFF’S MOTION - 17 1 Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 211 2 F.3d 1172, 1179-80 (9th Cir. 2000). 3 In this case even if the opinions of Dr. Kouzes and Dr. Marks were credited 4 as true, the ten month period of work must be addressed and resolved. Therefore, 5 it is not clear from the record that the ALJ would be required to find Plaintiff 6 disabled for the entire period alleged if all the evidence were properly evaluated. 7 Further proceedings are necessary for the ALJ to address all of Plaintiff’s 8 impairments at step two, to readdress the medical opinion evidence, to readdress 9 the lay witness evidence, and to readdress Plaintiff’s symptom statements. The 10 case shall be reassigned to a new ALJ. That ALJ will call a psychological and 11 vocational expert to testify at remand proceedings. 12 CONCLUSION 13 Accordingly, IT IS ORDERED: 14 1. 15 16 Defendant’s Motion for Summary Judgment, ECF No. 21, is DENIED. 2. Plaintiff’s Motion for Summary Judgment, ECF No. 17, is 17 GRANTED, in part, and the matter is REMANDED to the Commissioner for 18 additional proceedings consistent with this Order. 19 3. 20 The District Court Executive is directed to file this Order and provide a copy Application for attorney fees may be filed by separate motion. 21 to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff 22 and the file shall be CLOSED. 23 IT IS SO ORDERED. 24 DATED February 11, 2019. 25 26 27 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 28 ORDER GRANTING PLAINTIFF’S MOTION - 18

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.