1 U.S. F DIL ISE TD R I IN C TT H CE O URT EASTERN DISTRICT OF WASHINGTON
2 Mar 14, 2024
3 SEAN F. MCAVOY, CLERK
4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON 6 JACK B., 7 No. 4:23-CV-5068-WFN Plaintiff, 8 ORDER GRANTING -vs- PLAINTIFF'S MOTION 9 MARTIN O'MALLEY, Commissioner of 10 Social Security, 1
11 Defendant. 12 13 Pending before the Court are Plaintiff's Motion for Summary Judgment and the 14 Commissioner's Motion for Summary Judgment. ECF Nos. 12, 14. Attorney Chad Hatfield 15 represents Jack B. (Plaintiff); Special Assistant United States Attorney Frederick Fripps 16 represents the Commissioner of Social Security (Defendant). After reviewing the 17 administrative record and the briefs filed by the parties, the Court GRANTS Plaintiff's 18 motion, DENIES Defendant's motion, and REMANDS the matter for further proceedings 19 under sentence four of 42 U.S.C. § 405(g). 20 JURISDICTION 21 Plaintiff filed an application for benefits on January 13, 2020, later alleging disability 22 since July 22, 2016. The applications were denied initially and upon reconsideration. 23 Administrative Law Judge (ALJ) Marie Palachuk held a hearing on February 24, 2022, and 24 issued an unfavorable decision on March 15, 2022. Tr. 29-38. The Appeals Council denied 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 1, 2023. Tr. 1-6. Plaintiff appealed this final decision of the Commissioner 2 on May 4, 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. 28 This burden is met once a claimant establishes that a physical or mental impairment 1 prevents the claimant from engaging in past relevant work. 20 C.F.R. §§ 404.1520(a)(4), 2 416.920(a)(4). If a claimant cannot perform past relevant work, the ALJ proceeds to 3 step five, and the burden shifts to the Commissioner to show (1) the claimant can make 4 an adjustment to other work and (2) the claimant can perform other work that exists 5 in significant numbers in the national economy. Beltran v. Astrue, 700 F.3d 386, 389 6 (9th Cir. 2012). If a claimant cannot make an adjustment to other work in the national 7 economy, the claimant will be found disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 8 416.920(a)(4)(v). 9 ADMINISTRATIVE FINDINGS 10 On March 15, 2022, the ALJ issued a decision finding Plaintiff was not disabled as 11 defined in the Social Security Act. Tr. 29-38. 12 At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity 13 since January 13, 2020, the application date. Tr. 31. 14 At step two, the ALJ determined Plaintiff had the following severe impairments: 15 asthma, obesity, depressive disorder, and schizophrenia disorder. Tr. 31. 16 At step three, the ALJ found these impairments did not meet or equal the requirements 17 of a listed impairment. Tr. 32. 18 The ALJ assessed Plaintiff's Residual Functional Capacity (RFC) and determined 19 Plaintiff could perform a full range of work at all exertional levels subject to the following 20 limitations: 21 No ladders, ropes, or scaffolds. He must avoid more than moderate exposure to 22 respiratory irritants and avoid all exposure to hazards. He is able to understand, 23 remember and carry out simple, routine tasks and maintain concentration, persistence, 24 and pace for two-hour intervals between regularly scheduled breaks. He can have no 25 interaction with the public, but can have occasional and superficial interaction with 26 coworkers. 27 Tr. 33. 28 At step four, the ALJ found Plaintiff has no past relevant work. Tr. 36. 1 At step five, the ALJ found there are jobs that exist in significant numbers in the 2 national economy that Plaintiff can perform. Tr. 37. 3 The ALJ thus concluded Plaintiff has not been disabled since the application date. 4 Tr. 38. 5 ISSUES 6 The question presented is whether substantial evidence supports the ALJ's decision 7 denying benefits and, if so, whether that decision is based on proper legal standards. 8 Plaintiff raises the following issues for review: (A) whether the ALJ properly 9 evaluated the medical opinion evidence; (B) whether the ALJ properly evaluated Plaintiff's 10 subjective complains; (C) whether the ALJ erred at step three; and (D) whether the ALJ 11 erred at step five. ECF No. 12 at 8. 12 DISCUSSION 13 A. Medical Opinions 14 Under regulations applicable to this case, the ALJ is required to articulate the 15 persuasiveness of each medical opinion, specifically with respect to whether the opinions 16 are supported and consistent with the record. 20 C.F.R.
Free access — add to your briefcase to read the full text and ask questions with AI
1 U.S. F DIL ISE TD R I IN C TT H CE O URT EASTERN DISTRICT OF WASHINGTON
2 Mar 14, 2024
3 SEAN F. MCAVOY, CLERK
4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON 6 JACK B., 7 No. 4:23-CV-5068-WFN Plaintiff, 8 ORDER GRANTING -vs- PLAINTIFF'S MOTION 9 MARTIN O'MALLEY, Commissioner of 10 Social Security, 1
11 Defendant. 12 13 Pending before the Court are Plaintiff's Motion for Summary Judgment and the 14 Commissioner's Motion for Summary Judgment. ECF Nos. 12, 14. Attorney Chad Hatfield 15 represents Jack B. (Plaintiff); Special Assistant United States Attorney Frederick Fripps 16 represents the Commissioner of Social Security (Defendant). After reviewing the 17 administrative record and the briefs filed by the parties, the Court GRANTS Plaintiff's 18 motion, DENIES Defendant's motion, and REMANDS the matter for further proceedings 19 under sentence four of 42 U.S.C. § 405(g). 20 JURISDICTION 21 Plaintiff filed an application for benefits on January 13, 2020, later alleging disability 22 since July 22, 2016. The applications were denied initially and upon reconsideration. 23 Administrative Law Judge (ALJ) Marie Palachuk held a hearing on February 24, 2022, and 24 issued an unfavorable decision on March 15, 2022. Tr. 29-38. The Appeals Council denied 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 1, 2023. Tr. 1-6. Plaintiff appealed this final decision of the Commissioner 2 on May 4, 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. 28 This burden is met once a claimant establishes that a physical or mental impairment 1 prevents the claimant from engaging in past relevant work. 20 C.F.R. §§ 404.1520(a)(4), 2 416.920(a)(4). If a claimant cannot perform past relevant work, the ALJ proceeds to 3 step five, and the burden shifts to the Commissioner to show (1) the claimant can make 4 an adjustment to other work and (2) the claimant can perform other work that exists 5 in significant numbers in the national economy. Beltran v. Astrue, 700 F.3d 386, 389 6 (9th Cir. 2012). If a claimant cannot make an adjustment to other work in the national 7 economy, the claimant will be found disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 8 416.920(a)(4)(v). 9 ADMINISTRATIVE FINDINGS 10 On March 15, 2022, the ALJ issued a decision finding Plaintiff was not disabled as 11 defined in the Social Security Act. Tr. 29-38. 12 At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity 13 since January 13, 2020, the application date. Tr. 31. 14 At step two, the ALJ determined Plaintiff had the following severe impairments: 15 asthma, obesity, depressive disorder, and schizophrenia disorder. Tr. 31. 16 At step three, the ALJ found these impairments did not meet or equal the requirements 17 of a listed impairment. Tr. 32. 18 The ALJ assessed Plaintiff's Residual Functional Capacity (RFC) and determined 19 Plaintiff could perform a full range of work at all exertional levels subject to the following 20 limitations: 21 No ladders, ropes, or scaffolds. He must avoid more than moderate exposure to 22 respiratory irritants and avoid all exposure to hazards. He is able to understand, 23 remember and carry out simple, routine tasks and maintain concentration, persistence, 24 and pace for two-hour intervals between regularly scheduled breaks. He can have no 25 interaction with the public, but can have occasional and superficial interaction with 26 coworkers. 27 Tr. 33. 28 At step four, the ALJ found Plaintiff has no past relevant work. Tr. 36. 1 At step five, the ALJ found there are jobs that exist in significant numbers in the 2 national economy that Plaintiff can perform. Tr. 37. 3 The ALJ thus concluded Plaintiff has not been disabled since the application date. 4 Tr. 38. 5 ISSUES 6 The question presented is whether substantial evidence supports the ALJ's decision 7 denying benefits and, if so, whether that decision is based on proper legal standards. 8 Plaintiff raises the following issues for review: (A) whether the ALJ properly 9 evaluated the medical opinion evidence; (B) whether the ALJ properly evaluated Plaintiff's 10 subjective complains; (C) whether the ALJ erred at step three; and (D) whether the ALJ 11 erred at step five. ECF No. 12 at 8. 12 DISCUSSION 13 A. Medical Opinions 14 Under regulations applicable to this case, the ALJ is required to articulate the 15 persuasiveness of each medical opinion, specifically with respect to whether the opinions 16 are supported and consistent with the record. 20 C.F.R. § 416.920c(a)-(c). An ALJ's 17 consistency and supportability findings must be supported by substantial evidence. See 18 Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022). Plaintiff argues the ALJ misevaluated 19 the opinion of Jerry Toews, M.D., the testifying medical expert. ECF No. 12 at 11-12. As 20 discussed below, the Court agrees. 21 Dr. Toews opined that Plaintiff has no limitation in understanding, remembering, or 22 applying information; no limitation in interacting with others; a mild limitation in 23 concentrating, persisting, or maintaining pace; and a mild limitation in adapting or managing 24 oneself. Tr. 35. The ALJ found this opinion supported based on (1) "mental status exams 25 within normal limits," citing two isolated treatment notes related to Plaintiff's potential sleep 26 condition (Tr. 685, 687), and (2) "the record indicat[ing] that he can interact well with others 27 at the institution," citing, without specification, the "Hearing Testimony." Tr. 35. 28 Substantial evidence supports neither ground. As to the former, the evidence proffered in 1 support of the finding consists of two pages of treatment notes relating to Plaintiff's potential 2 sleep condition. See Tr. 685 (discussing use of BiPAP when sleeping); Tr. 687 (discussing 3 results of sleep apnea-related study). Neither speak to Plaintiff's schizophrenia disorder. In 4 any event, an ALJ "cannot simply pick out a few isolated instances" of medical health that 5 support her conclusion, but must consider those instances in the broader context "with an 6 understanding of the patient's overall well-being and the nature of [his] symptoms." Attmore 7 v. Colvin, 827 F.3d 872, 877 (9th Cir. 2016). As to the latter, the ALJ failed to cite to specific 8 evidence in support of this finding. It is not the job of the reviewing court to comb the 9 administrative record to find specific conflicts. Burrell v. Colvin, 775 F.3d 1133, 1138 (9th 10 Cir. 2014). To the extent the ALJ credited and adopted portions of the opinion, the Court 11 concludes the ALJ's evaluation is not supported by substantial evidence. 12 B. Subjective Complaints 13 Plaintiff contends the ALJ erred by not properly assessing Plaintiff's symptom 14 complaints. ECF No. 12 at 14-19. Where, as here, the ALJ determines a claimant has 15 presented objective medical evidence establishing underlying impairments that could cause 16 the symptoms alleged, and there is no affirmative evidence of malingering, the ALJ can only 17 discount the claimant's testimony as to symptom severity by providing "specific, clear, and 18 convincing" reasons supported by substantial evidence. Trevizo v. Berryhill, 871 F.3d 664, 19 678 (9th Cir. 2017). The Court concludes the ALJ failed to offer clear and convincing 20 reasons to discount Plaintiff's testimony. 21 The ALJ first discounted Plaintiff's testimony as inconsistent with the medical 22 evidence, to include Plaintiff's response to treatment. Tr. 34-35. However, because the 23 ALJ erred in evaluating the opinion of the testifying medical expert, and necessarily failed 24 to properly evaluate the medical evidence, as discussed above, this is not a valid ground to 25 discount Plaintiff's testimony. 26 The ALJ next discounted Plaintiff's testimony as inconsistent with his activities. In 27 support, the ALJ noted Plaintiff "is able to grocery shop, drive, and read" and that Plaintiff's 28 "hobbies include watching television, creative writing, reading, and sports." Tr. 35. 1 However, these activities neither "meet the threshold for transferable work skills," Orn v. 2 Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (citing Fair, 885 F.2d at 603), nor sufficiently 3 undermine Plaintiff's allegations, see Diedrich v. Berryhill, 874 F.3d 634, 643 (9th Cir. 4 2017) ("House chores, cooking simple meals, self-grooming, paying bills, writing checks, 5 and caring for a cat in one's own home, as well as occasional shopping outside the home, 6 are not similar to typical work responsibilities."); Reddick v. Chater, 157 F.3d 715, 722 (9th 7 Cir. 1998) ("Several courts, including this one, have recognized that disability claimants 8 should not be penalized for attempting to lead normal lives in the face of their limitations."); 9 Popa v. Berryhill, 872 F.3d 901, 906 (9th Cir. 2017) (holding that the ALJ erred in failing 10 to provide any explanation as to why claimant's activities established that the claimant 11 possessed the ability to maintain regular attendance at work). 12 The ALJ accordingly erred by discounting Plaintiff's testimony. 13 SCOPE OF REMAND 14 This case must be remanded because the ALJ harmfully misevaluated the 15 medical evidence and Plaintiff's testimony. Plaintiff contends the Court should remand 16 for an immediate award of benefits. ECF No. 12 at 20-21. Such a remand should be 17 granted only in a rare case and this is not such a case. The medical evidence and Plaintiff's 18 testimony must be reweighed and this is a function the Court cannot perform in the 19 first instance on appeal. Further proceedings are thus not only helpful but necessary. 20 See Brown-Hunter v. Colvin, 806 F.3d 487, 495 (9th Cir. 2015) (noting a remand for an 21 immediate award of benefits is an "extreme remedy," appropriate "only in ‘rare 22 circumstances'") (quoting Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1099 23 (9th Cir. 2014)). 24 Because the ALJ misevaluated the medical evidence and Plaintiff's testimony, the 25 ALJ will necessarily need to reassess her step three finding – which was based on the ALJ's 26 assessment of both the medical evidence and Plaintiff's testimony – and determine whether 27 the RFC needs to be adjusted. For this reason, the Court need not reach Plaintiff's remaining 28 assignments of error. See PDK Labs. Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004) ("[I]f it is not necessary to decide more, it is necessary not to decide more.") (Roberts, J 2 || concurring in part and concurring in the judgment). 3 On remand, the ALJ shall reevaluate the opinion of Dr. Toews, reassess Plaintiff 4|| testimony, reevaluate Plaintiff's claims at step three, redetermine the RFC as needed, an 5|| proceed to the remaining steps as appropriate. 6 CONCLUSION 7 Having reviewed the record and the ALJ's findings, the Commissioner's final decisio 8 || is REVERSED and this case is REMANDED for further proceedings under sentence for 9|| of 42 U.S.C. § 405(g). Accordingly, 10 IT IS ORDERED that: 11 1. Plaintiff's Motion for Summary Judgment, filed September 12, 2023, ECF No. 12 12|| is GRANTED. 13 2. Defendant's Motion for Summary Judgment, filed October 12, 2023, ECF No. 1: is DENIED. 15 The District Court Executive is directed to file this Order and provide a copy t counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff and the file sha be CLOSED. 18 DATED this 14th day of March, 2024. L. D1. Aa — WM. FREMMING NIELSEN 21 |} 03-13-24 SENIOR UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 28
ORDER GRANTING