Adams v. Saul

• Court: District Court, E.D. Washington
• Decided: August 28, 2020
• Docket: 1:19-cv-03221
• Status: Unknown

Opinion

1 2 3 U.S. F DIL ISE TD R I IN C TT H CE O URT EASTERN DISTRICT OF WASHINGTON 4 Aug 28, 2020 5 SEAN F. MCAVOY, CLERK 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON

9 SHAWNTELLE A., No. 1:19-CV-03221-JTR

10 Plaintiff, ORDER GRANTING PLAINTIFF’S 11 MOTION FOR SUMMARY 12 v. JUDGMENT

13 ANDREW M. SAUL, 14 COMMISSIONER OF SOCIAL SECURITY, 15

16 Defendant. 17 18 BEFORE THE COURT are cross-motions for summary judgment. ECF 19 Nos. 13, 14. Attorney D. James Tree represents Shawntelle A. (Plaintiff); Special 20 Assistant United States Attorney Jeffrey Staples represents the Commissioner of 21 Social Security (Defendant). The parties have consented to proceed before a 22 magistrate judge. ECF No. 6. After reviewing the administrative record and the 23 briefs filed by the parties, the Court GRANTS, IN PART, Plaintiff’s Motion for 24 Summary Judgment; DENIES Defendant’s Motion for Summary Judgment; and 25 REMANDS the matter to the Commissioner for additional proceedings pursuant to 26 42 U.S.C. § 405(g). 27 JURISDICTION 28 Plaintiff filed applications for Social Security Disability Insurance and 1 Supplemental Security Income on April 8, 2016 and April 6, 2016, respectively. 2 Tr. 97-98. She alleged disability since April 6, 20131, Tr. 255, 262, due to 3 posttraumatic stress disorder (PTSD), diabetes, multiple sclerosis (MS), 4 depression, muscle pain, cognitive issues, muscle spasms, incontinence, insomnia, 5 anxiety, and vision problems. Tr. 299. The applications were denied initially and 6 upon reconsideration. Tr. 165-71, 176-89. Administrative Law Judge (ALJ) 7 Wayne N. Araki held a hearing on May 16, 2018, Tr. 34-73, and issued an 8 unfavorable decision on September 6, 2018, Tr. 157-28. The Appeals Council 9 denied the request for review on July 23, 2019. Tr. 1-5. The ALJ’s September 10 2018 decision is the final decision of the Commissioner, which is appealable to the 11 district court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action for judicial 12 review on September 18, 2019. ECF No. 1. 13 STATEMENT OF FACTS 14 Plaintiff was 23 years old at her alleged date of onset. Tr. 255. Plaintiff 15 completed three years of college. Tr. 300. Her reported work history includes the 16 positions of childcare provider, cashier, library aid, and nursing aid. Tr. 282, 301. 17 At application, she reported she was working as a childcare provider earning 18 $200.00 a month. Tr. 301. 19 STANDARD OF REVIEW 20 The ALJ is responsible for determining credibility, resolving conflicts in 21 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 22 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 23 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 24 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 25

26 1The ALJ decision states April 6, 2015, Tr. 17, but both applications state 27 April 6, 2013, Tr. 255, 262. Upon remand, the ALJ will clearly identify Plaintiff’s 28 alleged onset date. 1 only if it is not supported by substantial evidence or if it is based on legal error. 2 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 3 defined as being more than a mere scintilla, but less than a preponderance. Id. at 4 1098. Put another way, substantial evidence is such relevant evidence as a 5 reasonable mind might accept as adequate to support a conclusion. Richardson v. 6 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one 7 rational interpretation, the Court may not substitute its judgment for that of the 8 ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 9 169 F.3d 595, 599 (9th Cir. 1999). If substantial evidence supports the 10 administrative findings, or if conflicting evidence supports a finding of either 11 disability or non-disability, the ALJ’s determination is conclusive. Sprague v. 12 Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). Nevertheless, a decision 13 supported by substantial evidence will be set aside if the proper legal standards 14 were not applied in weighing the evidence and making the decision. Brawner v. 15 Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 16 SEQUENTIAL EVALUATION PROCESS 17 The Commissioner has established a five-step sequential evaluation process 18 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 19 416.920(a); Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). In steps one through 20 four, the burden of proof rests upon the claimant to establish a prima facie case of 21 entitlement to disability benefits. Tackett, 180 F.3d at 1098-99. This burden is 22 met once a claimant establishes that a physical or mental impairment prevents the 23 claimant from engaging in past relevant work. 20 C.F.R. §§ 404.1520(a)(4), 24 416.920(a)(4). If a claimant cannot perform past relevant work, the ALJ proceeds 25 to step five, and the burden shifts to the Commissioner to show (1) the claimant 26 can make an adjustment to other work; and (2) the claimant can perform specific 27 jobs that exist in the national economy. Batson v. Commissioner of Social Sec. 28 Admin., 359 F.3d 1190, 1193-94 (2004). If a claimant cannot make an adjustment 1 to other work in the national economy, the claimant will be found disabled. 20 2 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 3 ADMINISTRATIVE DECISION 4 On September 6, 2018, the ALJ issued a decision finding Plaintiff was not 5 disabled as defined in the Social Security Act. Tr. 17-28. 6 At step one, the ALJ found Plaintiff had not engaged in substantial gainful 7 activity since April 6, 2015. Tr. 20. 8 At step two, the ALJ determined Plaintiff had the following severe 9 impairments: affective disorder/depression; anxiety disorder; personality disorder; 10 multiple sclerosis; and visual disturbances. Tr. 20. 11 At step three, the ALJ found Plaintiff did not have an impairment or 12 combination of impairments that met or medically equaled the severity of one of 13 the listed impairments. Tr. 20. 14 The ALJ assessed Plaintiff’s Residual Functional Capacity and found she 15 could perform sedentary work with the following limitations:

16 This individual can lift and carry 10 lbs. occasionally and less than 10 17 lbs. frequently, can stand and/or walk at 15-minute intervals for 2 hours 18 per day, and can sit at 2-hour intervals for 6-8 hours per day. She can do no climbing of ladders, ropes or scaffolds. She can occasionally 19 climb stairs and ramps, and can occasionally balance, stoop, kneel, 20 crouch and crawl. She can have occasional exposure to extreme heat or to extreme cold. She can do no working at exposed heights and no 21 operating heavy equipment, and otherwise can have occasional 22 exposure to hazards. She is able [to] carry out instructions for tasks and complete tasks generally required by occupations with an SVP of 1-2; 23 i.e. tasks which can be learned by simple demonstration only or within 24 30 days or less. She can have occasional superficial interaction with 25 the general public. She can do assigned tasks that should be able to be completed without the assistance of others, but occasional assistance 26 would be tolerated. She is able to adjust to work setting changes 27 generally associated with occupations with an SVP of 1-2.

28 1 Tr. 21. 2 At step four, the ALJ found that Plaintiff had no past relevant work. Tr. 26. 3 At step five, the ALJ found that, considering Plaintiff’s age, education, work 4 experience and residual functional capacity, there were jobs that existed in 5 significant numbers in the national economy that Plaintiff could perform, 6 specifically identifying the representative occupations of document preparer, bench 7 hand, and table worker. Tr. 27. 8 The ALJ thus concluded Plaintiff was not under a disability within the 9 meaning of the Social Security Act at any time from April 6, 2015 through the date 10 of the decision. Tr. 28. 11 ISSUES 12 The question presented is whether substantial evidence supports the ALJ’s 13 decision denying benefits and, if so, whether that decision is based on proper legal 14 standards. Plaintiff contends the ALJ erred by (1) improperly evaluating the 15 medical opinions; (2) improperly rejecting her symptom testimony; and (3) failing 16 to meet his burden at step five. 17 DISCUSSION 18 1. Medical opinion evidence 19 Plaintiff contends the ALJ erred by improperly evaluating the medical 20 opinions. Specifically, she asserts the ALJ erred in rejecting the opinions of 21 treating physician Nathan Lilya, D.O. and treating provider Patty Jordan, B.A. 22 ECF No. 13 at 11-15. 23 In weighing medical source opinions, the ALJ should distinguish between 24 three different types of physicians: (1) treating physicians, who actually treat the 25 claimant; (2) examining physicians, who examine but do not treat the claimant; 26 and, (3) nonexamining physicians who neither treat nor examine the claimant. 27 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). The ALJ should give more 28 weight to the opinion of a treating physician than to the opinion of an examining 1 physician. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). Likewise, the ALJ 2 should give more weight to the opinion of an examining physician than to the 3 opinion of a nonexamining physician. Id. 4 When a treating physician’s opinion is not contradicted by another 5 physician, the ALJ may reject the opinion only for “clear and convincing” reasons, 6 and when a treating physician’s opinion is contradicted by another physician, the ALJ is only required to provide “specific and legitimate reasons” supported by 7 substantial evidence to reject the opinion. Lester, 81 F.3d at 830. The specific and 8 legitimate standard can be met by the ALJ setting out a detailed and thorough 9 summary of the facts and conflicting clinical evidence, stating his interpretation 10 thereof, and making findings. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 11 1989). The ALJ is required to do more than offer his conclusions, he “must set 12 forth his interpretations and explain why they, rather than the doctors’, are 13 correct.” Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). 14 A. Nathan Lilya, D.O. 15 On July 27, 2015, Dr. Lilya completed a “Documentation Request for 16 Medical or Disability Condition” form for the Washington State Department of 17 Social and Health Services. Tr. 1022-24. He stated that Plaintiff’s relapsing- 18 remitting MS limited Plaintiff’s ability to work, look for work, or prepare for work. 19 Tr. 1022. He stated that that “[d]ue to nature of disease, [Plaintiff’s] condition 20 waves. At times will be fully functional, but attacks can leave her with blurred 21 vision, moderate-severe pain, weakness/fatigue.” Id. He then limited her to 21-30 22 hours of work activities per week. Id. He stated Plaintiff’s condition was 23 permanent. Tr. 1023. 24 The ALJ gave “Dr. Lilya’s opinions of permanent multiple sclerosis and 25 limited work capacity” some weight. Tr. 25. The ALJ stated that “[i]t does not 26 appear that Dr. Lilya was aware of the claimant’s many physically demanding 27 activities, such as caring for 4 children regularly, her sister-in-law’s child, and a 28 neighbor’s child before.” Id. 1 A claimant’s testimony about her daily activities may be seen as inconsistent 2 with the presence of a disabling condition. See Curry v. Sullivan, 925 F.2d 1127, 3 1130 (9th Cir. 1990). However, here the ALJ’s conclusion that Dr. Lilya was not 4 aware of Plaintiff’s activities is not supported by substantial evidence. On June 1, 5 2015, Dr. Lilya listed Plaintiff’s current work status as “Full-time parent, Part- 6 time; Cashier Circle K.” Tr. 858. On July 20, 2015, Dr. Lilya described Plaintiff’s 7 household as including her spouse, her step-daughter, her daughter, and her two 8 sons. Tr. 851. Again, her work status was described as “Full-time parent, Part- 9 time; Cashier Circle K.” Tr. 851. Therefore, Dr. Lilya was aware that Plaintiff 10 was a full-time parent to four children. Furthermore, Plaintiff’s work for DSHS in 11 2015 only yielded $172.80 in March of 2015 and $172.80 in November of 2015. 12 Tr. 282. Therefore, her work activity babysitting was not extensive in 2015. Dr. 13 Lilya was even aware of Plaintiff’s part-time work as a cashier at Circle K. 14 Defendant counters Plaintiff’s argument that Dr. Lilya was aware of 15 Plaintiff’s activities by asserting that Plaintiff is splitting hairs and that “the point 16 of the ALJ’s conclusion was that Plaintiff’s activities conflicted with Dr. Lilya’s 17 opinion – if he had been aware of the extent of Plaintiff’s activities and the ways in 18 which they contradicted his assessment, then he presumably would have changed 19 his opinion accordingly.” ECF No. 14 at 5. However, the ALJ clearly stated that 20 “[i]t does not appear that Dr. Lilya was aware of the claimant’s many physically 21 demanding activities, such as caring for 4 children regularly, her sister-in-law’s 22 child, and a neighbor’s child before.” Tr. 25. The record reflects that Dr. Lilya 23 was aware of the extent of these activities. Therefore, the ALJ’s determination is 24 not supported by substantial evidence. The decision of the ALJ must be supported 25 by substantial evidence or it can be reversed. Tackett 180 F.3d at 1097. Therefore, 26 the case is remanded for the ALJ to properly address Dr. Lilya’s opinion. 27 B. Patty Jordan, B.A. 28 On August 27, 2015, Ms. Jordan, a Care Coordinator/Therapist Intern, 1 completed a “Documentation Request for Medical or Disability Condition” form 2 for DSHS. Tr. 1028-30. She stated that Plaintiff was diagnosed with PTSD and 3 relapse remitting MS, and that these conditions limited Plaintiff’s ability to work, 4 look for work, or prepare for work. Tr. 1028. She stated that “Shawntelle reports 5 ‘Flair ups’ with MS symptoms. Difficult for her to lift more than 10 lbs or stand 6 on her feet for long periods of time. PTSD symptoms make it difficult to 7 concentrate, speech tangential.” Id. She opined that Plaintiff would be limited to 8 one to ten hours a week of work participation. Id. Ms. Jordan was asked if 9 Plaintiff had any limitations with lifting and carrying, and she replied that Plaintiff 10 was limited to sedentary work defined as “[a]ble to lift 10 pounds maximum and 11 frequently lift or carry such articles as files and small tools. A sedentary job may 12 require sitting, walking and standing for brief periods.” Tr. 1029. The ALJ gave 13 Ms. Jordan’s opinion “limited weight,” stating “[t]his opinion, which support 14 contained in the same report or the longitudinal record, is accorded limited weight. 15 It is not clear if Ms. Jordan is a treating therapist.” Tr. 25. 16 As a Care Coordinator/Therapist Intern Ms. Jordan does not qualify as an 17 acceptable medical source. 20 C.F.R. §§ 404.1502, 416.902. Instead, she qualifies 18 as an other source. Id. However, testimony from an other source is “competent 19 evidence” as to “how an impairment affects [a claimant’s] ability to work.” Stout 20 v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050 (9th Cir. 2006); see also Dodrill v. 21 Shalala, 12 F.3d 915, 918-19 (9th Cir. 1993). An ALJ must give “germane” 22 reasons to discount evidence from these “other sources.” Dodrill, 12 F.3d at 919. 23 The ALJ’s reasons for assigning the opinion limited weight did not meet the 24 germane standard. First, the ALJ stated that the opinion “support contained in the 25 same report or in the longitudinal record.” Tr. 25. Defendant argues that the ALJ 26 meant to state that opinion “lacks support contained. . .” and the ALJ simply 27 omitted the work “lacks.” ECF No. 14 at 6. However, even if this was the case, 28 the ALJ failed to properly discuss the opinion. The Ninth Circuit has found that 1 inconsistency with the medical evidence is a germane reason to discount lay 2 witness testimony, but the ALJ’s conclusion must be supported by substantial 3 evidence. See Bayliss v. Barnhart, 427 F.3d 1211, at 1218 (9th Cir. 2005). While 4 the ALJ indicates here that he gave “limited weight” to the opinion, the ALJ does 5 not identify which portions of the statement that are rejected or adopted. Likewise, 6 he fails to provide a single citation to the record demonstrating a lack of support. 7 Without such information, the Court is unable to find substantial evidence supports 8 the rejection of Ms. Jordan’s statements. 9 The ALJ’s second reason for rejecting the opinion, that there was no 10 evidence that Ms. Jordan was a treating therapist, is not supported by substantial 11 evidence. Ms. Jordan treated Plaintiff repeatedly from July 31, 2015 through 12 January 20, 2016. Tr. 908-44. This included five treatment sessions before the 13 August 27, 2015 opinion. Tr. 940-44. Therefore, the ALJ failed to provide 14 germane reasons for rejecting Ms. Jordan’s opinion. Upon remand, the ALJ will 15 readdress this opinion. 16 2. Plaintiff’s Symptom Statements 17 Plaintiff contests the ALJ’s determination that Plaintiff’s symptom 18 statements were unreliable. ECF No. 13 at 15-18. 19 It is generally the province of the ALJ to make determinations regarding the 20 reliability of Plaintiff’s symptom statements, Andrews, 53 F.3d at 1039, but the 21 ALJ’s findings must be supported by specific cogent reasons, Rashad v. Sullivan, 22 903 F.2d 1229, 1231 (9th Cir. 1990). Absent affirmative evidence of malingering, 23 the ALJ’s reasons for rejecting the claimant’s testimony must be “specific, clear 24 and convincing.” Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Lester, 81 25 F.3d at 834. “General findings are insufficient: rather the ALJ must identify what 26 testimony is not credible and what evidence undermines the claimant’s 27 complaints.” Lester, 81 F.3d at 834. 28 The ALJ found Plaintiff’s “statements concerning the intensity, persistence, 1 and limiting effects of these symptoms are not entirely consistent with the medical 2 evidence and other evidence in the record for the reasons explained in this 3 decision.” Tr. 22. The evaluation of a claimant’s symptom statements and their 4 resulting limitations relies, in part, on the assessment of the medical evidence. See 5 20 C.F.R. §§ 404.1529(c), 416.929(c); S.S.R. 16-3p. Therefore, in light of the case 6 being remanded for the ALJ to readdress the medical source opinions in the file, a 7 new assessment of Plaintiff’s subjective symptom statements will be necessary. 8 3. Step Five 9 Plaintiff challenges the ALJ’s step five determination in two ways: (1) one 10 of the three jobs the ALJ provided does not match the DOT number in the 11 decision; and (2) the jobs the ALJ identified have numbers in the national economy 12 drastically different than what the vocational expert testified. ECF No. 13 at 18- 13 20. Because the ALJ has been instructed to address the medical opinions and 14 Plaintiff’s symptom statements on remand, he will be required to make a new 15 residual functional capacity determination and call a vocational expert to provide 16 new testimony before making a new step five determination. 17 REMEDY 18 Plaintiff asks the Court to remand this case for an immediate award of 19 benefits. ECF Nos. 13 at 20. 20 The decision whether to remand for further proceedings or reverse and 21 award benefits is within the discretion of the district court. McAllister v. Sullivan, 22 888 F.2d 599, 603 (9th Cir. 1989). Under the credit-as-true rule the Court remands 23 for an award of benefits when (1) the record has been fully developed and further 24 administrative proceedings would serve no useful purpose; (2) the ALJ has failed 25 to provide legally sufficient reasons for rejecting evidence, whether claimant 26 testimony or medical opinion; and (3) if the improperly discredited evidence were 27 credited as true, the ALJ would be required to find the claimant disabled on 28 remand. Revels v. Berryhill, 874 F.3d 648, 668 (9th Cir. 2017). Remand is 1 || appropriate where there are outstanding issues that must be resolved before a determination can be made, and it is not clear from the record that the ALJ would be required to find a claimant disabled if all the evidence were properly evaluated. 4|| See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 5|} 211 F.3d 1172, 1179-80 (9th Cir. 2000). 6 This case is remanded for additional proceedings because it is not clear from the record that the ALJ would be required to find Plaintiff disabled if all the 8 || evidence were properly evaluated. The ALJ will reevaluate the opinion evidence, address Plaintiff's symptom statements, and make a new step five determination. 10|| Additionally, the ALJ will supplement the record with any outstanding medical evidence pertaining to the period in question and take testimony from a vocational expert. 13 CONCLUSION 14 Accordingly, IT IS ORDERED: 15 1. Defendant’s Motion for Summary Judgment, ECF No. 14, is DENIED. 17 2. Plaintiff's Motion for Summary Judgment, ECF No. 13, is GRANTED, in part, and the matter is REMANDED for additional proceedings 19]| consistent with this order. 20 3. Application for attorney fees may be filed by separate motion. 21 The District Court Executive is directed to file this Order and provide a copy 22 || to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff 23 || and the file shall be CLOSED. 24 DATED August 28, 2020.

°° —___ JOHNT. RODGERS 27 Va” UNITED STATES MAGISTRATE JUDGE 28