Borba v. O'Malley

• Court: District Court, E.D. Washington
• Decided: March 19, 2024
• Docket: 4:23-cv-05072
• Status: Unknown

Opinion

EASTERN DISTRICT OF WASHINGTON 1 Mar 19, 2024

2 SEAN F. MCAVOY, CLERK 3 UNITED STATES DISTRICT COURT

4 EASTERN DISTRICT OF WASHINGTON 5 STACY B., 6 No. 4:23-CV-5072-WFN Plaintiff, 7 ORDER GRANTING PLAINTIFF'S -vs- MOTION TO REVERSE THE 8 DECISION OF THE COMMISSIONER MARTIN O'MALLEY, Commissioner of 9 Social Security, 1

10 Defendant. 11 12 Pending before the Court are Plaintiff's Motion for Summary Judgment and the 13 Commissioner's Motion for Summary Judgment. ECF Nos. 6, 8. Attorney Chad Hatfield 14 represents Stacy B. (Plaintiff); Special Assistant United States Attorney Erin Highland 15 represents the Commissioner of Social Security (Defendant). After reviewing the 16 administrative record and the briefs filed by the parties, the Court GRANTS Plaintiff's 17 motion, DENIES Defendant's motion, and REMANDS the matter for further proceedings 18 under sentence four of 42 U.S.C. § 405(g). 19 JURISDICTION 20 Plaintiff filed an application for benefits on June 22, 2020, alleging disability 21 since June 9, 2020. The applications were denied initially and upon reconsideration. 22 Administrative Law Judge (ALJ) Marie Palachuk held a hearing on May 18, 2022, and 23 issued an unfavorable decision on June 29, 2022. Tr. 17-31. The Appeals Council denied 24 25 26 1 This action was originally filed against Kilolo Kijakazi in her capacity as the acting 27 Commissioner of Social Security. Martin O'Malley is substituted as the defendant because 28 he is now the Commissioner of Social Security. See Fed. R. Civ. P. 25(d). 1 review on March 13, 2023. Tr. 1-6. Plaintiff appealed this final decision of the 2 Commissioner on May 16, 2023. ECF No. 1. 3 STANDARD OF REVIEW 4 The ALJ is responsible for determining credibility, resolving conflicts in medical 5 testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 6 1995). The ALJ's determinations of law are reviewed de novo, with deference to a 7 reasonable interpretation of the applicable statutes. McNatt v. Apfel, 201 F.3d 1084, 1087 8 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is not supported by 9 substantial evidence or if it is based on legal error. Tackett v. Apfel, 180 F.3d 1094, 1097 10 (9th Cir. 1999). Substantial evidence is defined as being more than a mere scintilla, but less 11 than a preponderance. Id. at 1098. Put another way, substantial evidence is such relevant 12 evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson 13 v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 14 197, 229 (1938)). If the evidence is susceptible to more than one rational interpretation, the 15 Court may not substitute its judgment for that of the ALJ. Tackett, 180 F.3d at 1098; Morgan 16 v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). If substantial evidence 17 supports the administrative findings, or if conflicting evidence supports a finding of either 18 disability or non-disability, the ALJ's determination is conclusive. Sprague v. Bowen, 812 19 F.2d 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision supported by substantial 20 evidence will be set aside if the proper legal standards were not applied in weighing the 21 evidence and making the decision. Brawner v. Sec'y of Health and Human Services, 839 22 F.2d 432, 433 (9th Cir. 1988). 23 SEQUENTIAL EVALUATION PROCESS 24 The Commissioner has established a five-step sequential evaluation process for 25 determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 416.920(a); Bowen v. 26 Yuckert, 482 U.S. 137, 140-42 (1987). In steps one through four, the claimant bears the 27 burden of establishing a prima facie case of disability. Tackett, 180 F.3d at 1098-1099. This 28 burden is met once a claimant establishes that a physical or mental impairment prevents the 1 claimant from engaging in past relevant work. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). 2 If a claimant cannot perform past relevant work, the ALJ proceeds to step five, and the 3 burden shifts to the Commissioner to show (1) the claimant can make an adjustment to other 4 work and (2) the claimant can perform other work that exists in significant numbers in the 5 national economy. Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). If a claimant cannot 6 make an adjustment to other work in the national economy, the claimant will be found 7 disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 8 ADMINISTRATIVE FINDINGS 9 On June 29, 2022, the ALJ issued a decision finding Plaintiff was not disabled as 10 defined in the Social Security Act. Tr. 17-31 11 At step one, the ALJ found Plaintiff had not engaged in substantial gainful between 12 June 9, 2020, and December 20, 2021. Tr. 20. 13 At step two, the ALJ determined Plaintiff had the following severe impairments: 14 exogenous obesity; mild-to-moderate degenerative joint disease (DJD) of the knees, status 15 post knee replacement; level 1 sarcoidosis; and congestive heart failure (CHF). Tr. 21. 16 At step three, the ALJ found these impairments did not meet or equal the requirements 17 of a listed impairment. Tr. 24-25. 18 The ALJ assessed Plaintiff's Residual Functional Capacity (RFC) and determined 19 Plaintiff could perform sedentary work subject to the following limitations: 20 Stand and walk 15-20 minutes at time, 2 hours total in an 8-hour workday; 21 occasionally balance, stoop, kneel, crouch, and crawl, but rarely climb ramps and 22 stairs, and never climb ladders, ropes, or scaffolds; frequent use of foot pedal with the 23 right lower extremity (RLE) is limited to frequent, but not constant; overhead reaching 24 bilaterally is limited to occasional with less than moderate exposure to extreme 25 temperatures and humidity, and avoid all respiratory irritants. 26 Tr. 26. 27 At step four, the ALJ found Plaintiff capable of performing past relevant work as a 28 receptionist. Tr. 30. 1 The ALJ thus concluded Plaintiff has not been disabled "from June 9, 2020, through 2 the date of this decision." Tr. 31. 3 ISSUES 4 The question presented is whether substantial evidence supports the ALJ's decision 5 denying benefits and, if so, whether that decision is based on proper legal standards. 6 Plaintiff raises the following issues for review: (A) whether the ALJ properly 7 evaluated Plaintiff's subjective complains; (B) whether the ALJ adequately considered the 8 requested closed period of disability; (C) whether the ALJ erred at step three; and (D) 9 whether the ALJ erred at steps four and five. ECF No. 6 at 8. As discussed below, because 10 the Court concludes the ALJ erred with respect to the first issue, it is not necessary to reach 11 Plaintiff's remaining assignments of error. 12 DISCUSSION 13 Plaintiff contends the ALJ erred by not properly assessing her symptom complaints. 14 ECF No. 6 at 13-19. Where, as here, the ALJ determines a claimant has presented objective 15 medical evidence establishing underlying impairments that could cause the symptoms 16 alleged, and there is no affirmative evidence of malingering, the ALJ can only discount the 17 claimant's testimony as to symptom severity by providing "specific, clear, and convincing" 18 reasons supported by substantial evidence. Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 19 2017). The Court concludes the ALJ failed to offer clear and convincing reasons to discount 20 Plaintiff's testimony. 21 The ALJ first discounted Plaintiff's testimony on the ground the record lacked 22 "objective evidence of physiological abnormality reasonably expected to result in the degree 23 of limitation alleged." Tr. 27. Substantial evidence does not support this ground. The ALJ 24 found Plaintiff had five severe impairments during the relevant period, see Tr. 21, and 25 specifically noted, among other things, abnormalities in Plaintiff's lymph nodes and clinical 26 observations relating to and justifying Plaintiff's knee replacement, see Tr. 27-28; see also, 27 e.g., Tr. 561. By opining that the extant medical evidence of physiological abnormalities 28 would not "reasonably" result in Plaintiff's symptoms, the ALJ impermissibly played the 1 role of a medical expert. See Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975) 2 (recognizing that the ALJ is "not qualified as a medical expert"). Further, the Ninth Circuit 3 has made clear that an ALJ "cannot effectively render a claimant's subjective symptom 4 testimony superfluous by demanding positive objective medical evidence fully 5 corroborating every allegation within the subjective testimony." Smartt v. Kijakazi, 53 F.4th 6 489, 498 (9th Cir. 2022) (cleaned up); see also Glanden v. Kijakazi, 86 F.4th 838, 847 (9th 7 Cir. 2023). The ALJ thus erred by discounting Plaintiff's testimony on this ground. 8 The ALJ next discounted Plaintiff's testimony as inconsistent with Plaintiff's 9 "[r]outine conservative treatment and recommendations." Tr. 27. Substantial evidence does 10 not support this ground. Rather, the record reflects that Plaintiff underwent a series of 11 steroid infusions and had total knee replacement surgery during the period at issue. See, 12 e.g., Tr. 73-75, 677, 1718, 1726. Plaintiff argues "no reasonable reading of the record would 13 identify her treatment as ‘conservative.'" ECF No. 6 at 15. The Court agrees. Further, the 14 Commissioner does not appear to defend this specific finding.2 The ALJ thus erred by 15 discounting Plaintiff's testimony on this ground. 16 17 2 Instead, the Commissioner argues the ALJ reasonably discounted Plaintiff's testimony as 18 inconsistent with Plaintiff's "improvement with treatment." ECF No. 8 at 6. In support, the 19 Commissioner cites to a page of the ALJ's decision wherein the ALJ noted medical evidence 20 of record relating only to some of Plaintiff's severe impairments, some of which post-dated 21 the end of the closed period. See Tr. 28. The Commissioner then dedicates nearly two pages 22 of briefing to rescript medical evidence the Commissioner acknowledges "the ALJ did not 23 specifically cite." ECF No. 8 at 8 n.4. However, the Court reviews the ALJ's decision 24 "based on the reasoning and factual findings offered by the ALJ—not post hoc 25 rationalizations that attempt to intuit what the adjudicator may have been thinking." Bray v. 26 Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1225 (9th Cir. 2009) (citing, inter alia, Snell v. 27 Apfel, 177 F.3d 128, 134 (2d Cir. 1999) ("The requirement of reason-giving exists, in part, 28 to let claimants understand the disposition of their cases…")); see also Connett v. Barnhart, 1 Finally, the ALJ discounted Plaintiff's testimony as inconsistent with her activities. 2 In support, the ALJ noted Plaintiff "reported no trouble standing, reaching, using her hands, 3 remembering, understanding, or following directions." Tr. 27. Further, the ALJ noted 4 Plaintiff "can handle her personal care needs, handle her personal finances, prepare and cook 5 simple meals, and drive a car," and "she can go shopping in stores, visit with friends and 6 family, use video chat, and she gets along with authority figures." Tr. 27. However, these 7 activities neither "meet the threshold for transferable work skills," Orn v. Astrue, 495 F.3d 8 625, 639 (9th Cir. 2007) (citing Fair, 885 F.2d at 603), nor sufficiently undermine Plaintiff's 9 allegations, see Diedrich v. Berryhill, 874 F.3d 634, 643 (9th Cir. 2017) ("House chores, 10 cooking simple meals, self-grooming, paying bills, writing checks, and caring for a cat in 11 one's own home, as well as occasional shopping outside the home, are not similar to typical 12 work responsibilities."); Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) ("Several 13 courts, including this one, have recognized that disability claimants should not be penalized 14 for attempting to lead normal lives in the face of their limitations."); Popa v. Berryhill, 872 15 F.3d 901, 906 (9th Cir. 2017) (holding that the ALJ erred in failing to provide any 16 explanation as to why claimant's activities established that the claimant possessed the ability 17 to maintain regular attendance at work). The ALJ thus erred by discounting Plaintiff's 18 testimony on this ground. 19 The ALJ accordingly erred by discounting Plaintiff's testimony. 20 21 22 23 340 F.3d 871, 874 (9th Cir. 2003) (district court erred in affirming based on evidence the 24 ALJ did not discuss). To the extent the ALJ discounted Plaintiff's testimony as inconsistent 25 with her improvement with treatment, the Court concludes the ALJ's discussion of the 26 medical evidence was insufficient to discount Plaintiff's testimony concerning the closed 27 period at issue. Cf. Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993) (noting the ALJ 28 must explain how the medical evidence contradicts the claimant's testimony). 1 SCOPE OF REMAND 2 This case must be remanded because the ALJ harmfully misevaluated Plaintiff's 3 testimony. Plaintiff contends the Court should remand for an immediate award of benefits. 4 ECF No. 6 at 20-21. Such a remand should be granted only in a rare case and this is not 5 such a case. Plaintiff's testimony must be reweighed and this is a function the Court cannot 6 perform in the first instance on appeal. Further proceedings are thus not only helpful but 7 necessary. See Brown-Hunter v. Colvin, 806 F.3d 487, 495 (9th Cir. 2015) (noting a remand 8 for an immediate award of benefits is an "extreme remedy," appropriate "only in ‘rare 9 circumstances'") (quoting Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1099 10 (9th Cir. 2014)). 11 Because the ALJ misevaluated Plaintiff's testimony, the ALJ will necessarily need to 12 reassess her step three finding – which was based on the ALJ's assessment of Plaintiff's 13 testimony – and determine whether the RFC needs to be adjusted. For this reason, the Court 14 need not reach Plaintiff's remaining assignments of error. See PDK Labs. Inc. v. DEA, 362 15 F.3d 786, 799 (D.C. Cir. 2004) ("[I]f it is not necessary to decide more, it is necessary not 16 to decide more.") (Roberts, J., concurring in part and concurring in the judgment). 17 On remand, the ALJ shall reassess Plaintiff's testimony, reevaluate Plaintiff's claims 18 at step three, redetermine the RFC as needed, and proceed to the remaining steps as 19 appropriate. 20 CONCLUSION 21 Having reviewed the record and the ALJ's findings, the Commissioner's final decision 22 is REVERSED and this case is REMANDED for further proceedings under sentence four 23 of 42 U.S.C. § 405(g). Accordingly, 24 IT IS ORDERED that: 25 1. Plaintiff's Motion for Summary Judgment, filed September 6, 2023, ECF No. 6, 26 is GRANTED. 27 2. Defendant's Motion for Summary Judgment, filed October 5, 2023, ECF No. 8, 28 is DENIED. 1 The District Court Executive is directed to file this Order and provide copies t 2 || counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff and the file sha 3|| be CLOSED. 4 DATED this 19th day of March, 2024. 5 6 L. FREMMINGNIELSEN || 03-07-24 SENIOR UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

ORDER GRANTING