Heimbigner v. Commissioner of Social Security, No. 4:2018cv05074 - Document 17 (E.D. Wash. 2019)
Court Description: ORDER Granting 12 Plaintiff's Motion for Summary Judgment; denying 15 Defendant's Motion for Summary Judgment. Signed by Magistrate Judge John T. Rodgers. (PL, Case Administrator)
Download PDF
<![CDATA[
Heimbigner v. Commissioner of Social Security Doc. 17 1 2 3 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 4 May 31, 2019 5 SEAN F. MCAVOY, CLERK 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 JAMES H., 10 No. 4:18-CV-05074-JTR Plaintiff, 11 v. 12 13 14 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT COMMISSIONER OF SOCIAL SECURITY, 15 Defendant. 16 17 BEFORE THE COURT are cross-motions for summary judgment. ECF 18 Nos. 12, 15.1 Attorney Nicholas David Jordan represents James H. (Plaintiff); 19 Special Assistant United States Attorney Summer Stinson 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 25 1 The Court reviewed Plaintiff’s Reply brief. ECF No. 16. While the 26 heading of the brief matches this case’s number and the names of the parties, the 27 body of the brief concerns an individual and impairments other than those dealt 28 with in this case. Therefore, it was not considered in rendering this decision. ORDER GRANTING PLAINTIFF’S MOTION - 1 Dockets.Justia.com 1 Judgment; and REMANDS the matter to the Commissioner for additional 2 proceedings pursuant to 42 U.S.C. §§ 405(g), 1383(c). 3 JURISDICTION 4 Plaintiff filed applications for Supplemental Security Income (SSI) and 5 Disability Insurance Benefits (DIB) on March 24, 2014, Tr. 75-76, alleging 6 disability since June 29, 2012, Tr. 200, 207, due to posttraumatic arthritis, left 7 carpal tunnel syndrome, and proximal row carpectomy, Tr. 242. The applications 8 were denied initially and upon reconsideration. Tr. 147-67. Administrative Law 9 Judge (ALJ) Eric S. Basse held a hearing on January 4, 2017 and heard testimony 10 from Plaintiff and vocational expert Kimberly S. Mullinax. Tr. 34-74. The ALJ 11 issued an unfavorable decision on March 1, 2017. Tr. 15-26. The Appeals 12 Council denied review on March 7, 2018. Tr. 1-5. The ALJ’s March 1, 2017 13 decision became the final decision of the Commissioner, which is appealable to the 14 district court pursuant to 42 U.S.C. §§ 405(g), 1383(c). Plaintiff filed this action 15 for judicial review on April 26, 2018. ECF Nos. 1, 4. STATEMENT OF FACTS 16 The facts of the case are set forth in the administrative hearing transcript, the 17 18 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 19 here. 20 Plaintiff was 43 years old at the alleged onset date. Tr. 200. He completed 21 his GED in 1989. Tr. 243. His reported work history includes the jobs of 22 mechanic, welder, sawyer/builder, maintenance, housekeeping, janitor and 23 assistant manager. Id. When applying for benefits Plaintiff reported that he 24 stopped working on June 29, 2012 because of his conditions. Tr. 242. 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 8 U.S. 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) the claimant can perform 28 specific jobs which exist in the national economy. Batson v. Comm’r of Soc. Sec. ORDER GRANTING PLAINTIFF’S MOTION - 3 1 Admin., 359 F.3d 1190, 1193-94 (9th Cir. 2004). If the claimant cannot make an 2 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 1, 2017, the ALJ issued a decision finding Plaintiff was not 6 disabled as defined in the Social Security Act from June 29, 2012 through the date 7 of the decision. 8 9 At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since June 29, 2012, the alleged date of onset. Tr. 17. 10 At step two, the ALJ determined that Plaintiff had the following severe 11 impairments: status-post left upper extremity fracture with degenerative joint 12 disease; asthma; obesity; left carpal tunnel syndrome; and more recent right carpal 13 tunnel syndrome status-post release. Tr. 18. 14 At step three, the ALJ found that Plaintiff did not have an impairment or 15 combination of impairments that met or medically equaled the severity of one of 16 the listed impairments. Tr. 18. 17 At step four, the ALJ assessed Plaintiff’s residual function capacity and 18 determined he had no limitations in sitting, standing, or walking, but did have the 19 following limitations: 20 21 22 23 24 25 26 27 28 He is ambidextrous and has no limitations with his right upper extremity; but with his left upper extremity, the claimant can lift and carry up to 10 pounds. The claimant can occasionally climb ramps and stairs, stoop, and crawl. He can frequently crouch. The claimant has no difficulty with balancing or kneeling. The claimant cannot climb ladders, ropes, or scaffolds. The claimant is limited to frequently handling and fingering with his bilateral upper extremities. The claimant can occasionally feel with his left upper extremity. He should avoid concentrated exposure to extreme cold and extreme heat. The claimant should avoid even moderate exposure to vibrations or vibrating tools. The claimant cannot have concentrated exposure to pulmonary irritants or hazards, such as dangerous machinery and ORDER GRANTING PLAINTIFF’S MOTION - 4 unprotected heights. 1 2 Tr. 19. The ALJ identified Plaintiff’s past relevant work as diesel mechanic and 3 found that he could not perform this past relevant work. Tr. 24-25. At step five, the ALJ determined that, considering Plaintiff’s age, education, 4 5 work experience and residual functional capacity, and based on the testimony of 6 the vocational expert, there were other jobs that exist in significant numbers in the 7 national economy Plaintiff could perform, including the jobs of parking lot 8 attendant, escort vehicle driver, telephone information clerk, storage facility rental 9 clerk, and furniture rental clerk. Tr. 26-27. The ALJ concluded Plaintiff was not 10 under a disability within the meaning of the Social Security Act from June 29, 11 2012, through the date of the ALJ’s decision. Tr. 26. 12 ISSUES The question presented is whether substantial evidence supports the ALJ’s 13 14 decision denying benefits and, if so, whether that decision is based on proper legal 15 standards. Plaintiff contends the ALJ erred by (1) failing to properly weigh the 16 medical opinions in the record, (2) failing to properly weigh Plaintiff’s symptom 17 statements, and (3) failing to make a proper step five determination. DISCUSSION2 18 19 20 1. Medical Opinions Plaintiff argues that the ALJ failed to properly consider and weigh the 21 22 2 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 medical opinions expressed by James R. Kopp, M.D., Jean You, M.D., Daniel 2 Brzusek, D.O., and Eric Person, PA-C. ECF No. 12 at 11-13. Additionally, 3 Plaintiff argues that the ALJ erred by failing to identify any medical opinion which 4 he gave significant weight. Id. at 13. 5 In weighing medical source opinions, the ALJ should distinguish between 6 three different types of physicians: (1) treating physicians, who actually treat the 7 claimant; (2) examining physicians, who examine but do not treat the claimant; 8 and, (3) nonexamining physicians who neither treat nor examine the claimant. 9 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). The ALJ should give more 10 weight to the opinion of a treating physician than to the opinion of an examining 11 physician and more weight to the opinion of an examining physician than to the 12 opinion of a nonexamining physician. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 13 2007). When a treating or examining physician’s opinion is not contradicted by 14 another physician, the ALJ may reject the opinion only for “clear and convincing” 15 reasons, and when a treating or examining physician’s opinion is contradicted by 16 another physician, the ALJ is only required to provide “specific and legitimate 17 reasons” to reject the opinion. Lester, 81 F.3d at 830-31. 18 The opinions of the four providers range from 2001 through 2016. On 19 August 31, 2011, Mr. Pearson placed Plaintiff on off work status until he was 20 cleared by a specialist. Tr. 466. 21 On December 13, 2013, Dr. Kopp evaluated Plaintiff. Tr. 427-38. He 22 answered questions from the Department of Labor and Industries on April 25, 2014 23 and opined that Plaintiff had a 15% impairment in the right upper extremity and a 24 16% impairment of the left upper extremity. Tr. 439-40. 25 On April 22, 2015, Dr. You stated Plaintiff was not released to work from 26 April 22, 2015 to May 22, 2015, stating that Plaintiff’s progress was slower than 27 expected. Tr. 569. 28 On June 17, 2015, Dr. You was presented with the detailed functional ORDER GRANTING PLAINTIFF’S MOTION - 6 1 requirements of Plaintiff’s job as a diesel mechanic and agreed that Plaintiff could 2 return to this past work. Tr. 591-96. She also reviewed the detailed functional 3 requirements of the occupations of janitor, rental clerk, lube tech, and 4 welder/fabricator, and she opined that Plaintiff could perform these jobs. Tr. 597- 5 620. 6 On February 24, 2016, Dr. You signed a declaration that at the time of her 7 June 17, 2015 opinion that Plaintiff could meet the functional requirements of a 8 janitor, a rental clerk, a lube tech, and a welder/fabricator, she had not been 9 provided a copy of Plaintiff’s preexisting medical records including evidence from 10 the prior left wrist injury. Tr. 738. She concurred with the May 22, 2014 physical 11 capacity evaluation from Kirk Holle, P.T. and opined that Plaintiff was 12 permanently incapable of reasonably continuous, gainful employment as a 13 welder/fabricator, janitor, cashier, rental clerk, or lube tech. Id. The May 22, 2014 14 physical capacity evaluation from Therapist Holle limited Plaintiff to sitting, 15 standing, and walking each for two hours at one time and a total of eight hours 16 throughout a day, occasionally lifting 24 pounds from floor to waist and 16 pounds 17 from weight to overhead, frequently lifting 15 pounds from floor to waist and ten 18 pounds from waist to overhead, occasionally carrying 20 pounds and frequently 19 carrying 12 pounds, occasionally pushing/pulling with 32 pounds of force, 20 frequently pushing/pulling with 20 pounds of force, frequently squatting, kneeling, 21 bending/stooping, crouching, climbing stairs, static reaching overhead without 22 weight, and operating foot controls, occasionally to frequently climbing ladders 23 and performing final manipulation, and occasionally operating hand controls. Tr. 24 470. 25 On June 16, 2016, Dr. You stated that Plaintiff may perform modified duty 26 if available on a permanent basis. Tr. 1068. She also completed a form addressing 27 Plaintiff’s ability to perform work as a cashier, but the form is cutoff, and Dr. 28 You’s opinion is unclear. Tr. 1069. ORDER GRANTING PLAINTIFF’S MOTION - 7 1 On July 11, 2016, Dr. Brzusek completed an independent medical 2 examination. Tr. 1021-40. Following a review of the medical evidence and an 3 examination, Dr. Brzusek stated that “[d]ue to limitations of use of his left upper 4 extremity, [Plaintiff] cannot perform many jobs that require bilateral hand and 5 wrist movement during a typical eight-hour work day.” Tr. 1036. He then 6 answered a series of questions specific to Plaintiff’s worker’s compensation claim, 7 including that he had an impairment rating of 30% for the left upper extremity, he 8 was unable to perform the job of diesel mechanic/welder, lube tech, and welder 9 fabricator, it was unlikely Plaintiff could perform the job of janitor, and he could 10 11 only perform the job of rental clerk with significant accommodations. Tr. 1037-39. On October 4, 2016, Dr. Brzusek reviewed a September 20, 2016 physical 12 capacity evaluation from Therapist Holle and stated that he concurred with his 13 findings. Tr. 1063. Therapist Holle opined that Plaintiff could sit, stand, and walk 14 each for two hours at a time for a total of eight hours in a day. Tr. 1058. He 15 precluded Plaintiff for any left wrist flexion/extensions, limited Plaintiff to seldom 16 climbing ladders, crawling, and left handling/grasping, limited Plaintiff to 17 occasional left work above the shoulder, left keyboarding, and left fine 18 manipulation, and limited Plaintiff to frequent bilateral reaching forward, bilateral 19 reaching waist to shoulder, right work above the shoulders, right keyboarding, 20 right flexion/extension of the wrist, right handling/grasping, and right fine 21 manipulation. Id. He further limited Plaintiff’s lifting, carrying, pushing, and 22 pulling from between seven and fifty pounds depending on the location of the 23 object and the specified activity. Id. 24 The ALJ found that the opinions of Dr. Kopp, Dr. You, Dr. Brzusek, and 25 Mr. Pearson were rendered as part of Plaintiff’s worker’s compensation case and 26 gave them “little probative value,” and found that their conclusions were “not 27 entirely relevant with regard to the claimant’s application under the Social Security 28 Act.” Tr. 23. Plaintiff argues that rejecting an opinion because it was rendered as ORDER GRANTING PLAINTIFF’S MOTION - 8 1 part of a worker’s compensation claim is flawed reasoning. ECF No. 12 at 12-13. 2 Defendant argues that Ninth Circuit case law supports the ALJ’s rejection of the 3 opinions because they addressed matters reserved for the Commissioner. ECF No. 4 15 at 9. 5 The final determination of whether an individual is disabled is reserved to 6 the Commissioner. 20 C.F.R. §§ 404.1527(d)(1)-(2), 416.927(d)(1)-(2); see also 7 20 C.F.R. §§ 404.1527(d)(3), 416.927(d)(3) (“We will not give any special 8 significance to the source of an opinion on issues reserved to the Commissioner 9 described in paragraphs (d)(1) and (d)(2).”). The Commissioner is not bound by 10 other agencies’ evaluations of disability. See 20 C.F.R. §§ 404.1504, 416.904 (a 11 determination made by another agency that a claimant is disabled is not binding on 12 Social Security). However, agency “rules provide that adjudicators must always 13 carefully consider medical source opinions about any issue, including opinions 14 about issues that are reserved to the Commissioner.” S.S.R. 96-5p. This S.S.R. 15 was rescinded by Federal Register Notice Vol. 82, No. 57, page 15263 effective 16 March 27, 2017. However, on March 27, 2017, 20 C.F.R. §§ 404.1504, 416.904 17 was amended to include “we will consider all the supporting evidence underlying 18 the other governmental agency or nongovernmental entity’s decision that we 19 receive as evidence in your claim in accordance with” 20 C.F.R. §§ 404.1513(a)(1) 20 through (4), 416.913(a)(1) through (4). 21 While the S.S.R. was rescinded and the Regulations were changed after the 22 ALJ’s March 1, 2017 decision, the intent of the agency has not changed. The ALJ 23 is not required to adopt the determination of another agency regarding disability, 24 but he cannot overlook the medical opinions or medical evidence that underlies 25 these disability determinations. 20 C.F.R. §§ 404.1527(c), 416.927(c) (the 26 regulations require every medical opinion to be evaluated, regardless of its source). 27 Furthermore, the purpose for which medical reports are prepared does not provide 28 a legitimate basis for rejecting them. Lester, 81 F.3d at 832. Therefore, the ALJ ORDER GRANTING PLAINTIFF’S MOTION - 9 1 erred to the extent that he rejected medical evidence or medical opinions simply 2 because they were made as part of a worker’s compensation determination. 3 However, the ALJ did not err in rejecting the ultimate determinations of disability. Here, the ALJ failed to provide a legally sufficient reason for rejecting the 4 5 underlying opinions regarding functional capacity. This was an error. Therefore, 6 the case is remanded for the ALJ to make a new determination addressing the 7 underlying opinions of the medical providers, not just their worker’s compensation 8 ratings. 9 2. Plaintiff contests the ALJ’s determination that Plaintiff’s symptom 10 11 Plaintiff’s Symptom Statements statements were unreliable. ECF No. 12 at 7-11. 12 The evaluation of a claimant’s symptom statements and their resulting 13 limitations relies, in part, on the assessment of the medical evidence. See 20 14 C.F.R. §§ 404.1529(c), 416.929(c); S.S.R. 16-3p. Therefore, in light of the case 15 being remanded for the ALJ to readdress the medical source opinions from four 16 providers over the course of five years, a new assessment of Plaintiff’s subjective 17 symptom statements will be necessary. 18 3. 19 Step 5 Plaintiff argues that the ALJ presented an incomplete hypothetical to the 20 vocational expert as a result of failing to properly weigh the medical opinions and 21 Plaintiff’s symptom statements. ECF No. 12 at 13-15. Because the Court is 22 remanding the case for the ALJ to properly address the medical opinions in the file 23 and to readdress Plaintiff’s symptom statements, the ALJ will also make a new 24 residual functional capacity determination, which will require a new step four and 25 a new step five determination. CONCLUSION 26 27 Accordingly, IT IS ORDERED: 28 1. Defendant’s Motion for Summary Judgment, ECF No. 15, is ORDER GRANTING PLAINTIFF’S MOTION - 10 1 2 DENIED. 2. Plaintiff’s Motion for Summary Judgment, ECF No. 12, is 3 GRANTED, in part, and the matter is REMANDED for additional proceedings 4 consistent with this Order. 5 3. Application for attorney fees may be filed by separate motion. 6 The District Court Executive is directed to file this Order and provide a copy 7 to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff 8 and the file shall be CLOSED. 9 DATED May 31, 2019. 10 11 12 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION - 11
]]>
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.
