Burnes v. Bisignano

• Court: District Court, E.D. Washington
• Decided: August 29, 2025
• Docket: 1:25-cv-03008
• Status: Unknown

Opinion

1 Aug 29, 2025 2 SEAN F. MCAVOY, CLERK 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON 6 7 8 GREGORY B., No. 1:25-CV-03008-SAB 9 Plaintiff, 10 v. ORDER REVERSING THE 11 COMMISSIONER OF SOCIAL DECISION OF COMMISSIONER 12 SECURITY ADMINISTRATION, 13 Defendant. 14 15 16 Plaintiff brings this action seeking judicial review of the Commissioner of 17 Social Security’s final decision denying hIS application for social security benefits. 18 Plaintiff is represented by Matthew McGarry. The Commissioner is represented by 19 John Drenning and Brian M. Donovan. Pending before the Court are Plaintiff’s 20 Opening Brief, ECF No. 10, the Commissioner’s Brief, ECF No. 12, and Plaintiff’s 21 Reply Brief, ECF No. 13. 22 After reviewing the administrative record, briefs filed by the parties, and 23 applicable case law, the Court is fully informed. For the reasons set forth below, 24 the Court reverses the Commissioner’s decision and remands for an immediate 25 award of benefits. 26 I. Jurisdiction 27 On December 10, 2015, Plaintiff filed application for Title II disability 28 insurance benefits and a Title XVI application supplemental security income with 1 the onset date of December 1, 2013. Plaintiff’s application was denied initially and 2 on reconsideration. Plaintiff timely requested a hearing. A hearing was held on 3 May 1, 2019, and ALJ Kennedy found Plaintiff was not disabled. 4 Plaintiff appealed that decision and this Court remanded the case on 5 September 8, 2020. Another hearing was held on September 28, 2021. The ALJ 6 found Plaintiff was not disabled. The Appeals Council vacated and remanded the 7 decision.1 8 Another hearing was held by telephone on July 16, 2024. Plaintiff 9 participated and was represented by Timothy Anderson. Sharon Welter, vocational 10 expert also participated. At the hearing, Plaintiff informed the ALJ that he was no 11 longer disabled as of September 6, 2022, which is when he started a new job. The 12 ALJ found Plaintiff was not disabled from December 1, 2013 to November 12, 13 2024. 14 Plaintiff filed a timely appeal on January 20, 2025. ECF No. 1. The matter is 15 before this Court pursuant to 42 U.S.C. § 405(g). 16 II. Five-Step Sequential Evaluation Process 17 The Social Security Act defines disability as the “inability to engage in any 18 substantial gainful activity by reason of any medically determinable physical or 19 mental impairment which can be expected to result in death or which has lasted or 20 can be expected to last for a continuous period of not less than twelve months.” 42 21 U.S.C. § 423(d)(1)(A), 1382c(a)(3)(A). A claimant shall be determined to be under 22 a disability only if their impairments are of such severity that the claimant is not 23 only unable to do their previous work, but cannot, considering claimant’s age, 24 education, and work experiences, engage in any other substantial gainful work that 25 exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). The 26

27 1 Plaintiff sought congressional help due to the extraordinary delay at the Appeals 28 Council. 1 Commissioner has established a five-step sequential evaluation process to 2 determine whether a person is disabled in the statute. See 20 C.F.R. 3 § 404.1520(a)(4)(i)–(v), 416.920(a)(4)(i)–(v). 4 Step One: Is the claimant engaged in substantial gainful activities? Id. 5 § 404.1520(a)(4)(i), 416.920(a)(4)(i). Substantial gainful activity is work done for 6 pay and requires compensation above the statutory minimum. Keyes v. Sullivan, 7 894 F.2d 1053, 1057 (9th Cir. 1990). If the claimant is engaged in substantial 8 activity, benefits are denied. Id. § 404.1520(b), 416.920(b). If the claimant is not, 9 the ALJ proceeds to step two. 10 Step Two: Does the claimant have a medically-severe impairment or 11 combination of impairments? Id. § 404.1520(a)(4)(ii), 416.920(a)(4)(ii). A severe 12 impairment is one that lasted or must be expected to last for at least 12 months and 13 must be proven through objective medical evidence. Id. §§ 404.1509, 416.909. If 14 the claimant does not have a severe impairment or combination of impairments, the 15 disability claim is denied. Id. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the 16 impairment is severe, the evaluation proceeds to the third step. 17 Step Three: Does the claimant’s impairment meet or equal one of the listed 18 impairments acknowledged by the Commissioner to be so severe as to preclude 19 substantial gainful activity? Id. § 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the 20 impairment meets or equals one of the listed impairments, the claimant is 21 conclusively presumed to be disabled. Id. § 404.1520(d), 416.920(d). If the 22 impairment is not one conclusively presumed to be disabling, the evaluation 23 proceeds to the fourth step. 24 Before proceeding to the fourth step, the ALJ must first determine the 25 claimant’s residual functional capacity (RFC). An individual’s residual functional 26 capacity is their ability to do physical and mental work activities on a sustained 27 basis despite limitations from their impairments. Id. § 404.1545(a)(1), 28 416.945(a)(1). The RFC is relevant to both the fourth and fifth steps of the 1 analysis. 2 Step Four: Does the impairment prevent the claimant from performing work 3 they have performed in the past? Id. § 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the 4 claimant is able to perform their previous work, they are not disabled. Id. 5 § 404.1520(f), 416.920(f). If the claimant cannot perform this work, the evaluation 6 proceeds to the fifth and final step. 7 Step Five: Is the claimant able to perform other work in the national 8 economy in view of their age, education, and work experience? Id. 9 § 404.1520(a)(4)(v), 416.920(a)(4)(v). The initial burden of proof rests upon the 10 claimant to establish a prima facie case of entitlement to disability benefits. Tackett 11 v. Apfel, 108 F.3d 1094, 1098 (9th Cir. 1999). This burden is met once a claimant 12 establishes that a physical or mental impairment prevents him from engaging in her 13 previous occupation. Id. At step five, the burden shifts to the Commissioner to 14 show that the claimant can perform other substantial gainful activity. Id. 15 III. Standard of Review 16 The Commissioner’s determination will be set aside only when the ALJ’s 17 findings are based on legal error or are not supported by substantial evidence in the 18 record as a whole. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992) (citing 19 42 U.S.C. § 405(g)). Substantial evidence is “more than a mere scintilla,” 20 Richardson v. Perales, 402 U.S. 389, 401 (1971), but “less than a preponderance,” 21 Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975). Substantial 22 evidence is “such relevant evidence as a reasonable mind might accept as adequate 23 to support a conclusion.” Richardson, 402 U.S. at 401. 24 A decision supported by substantial evidence will be set aside if the proper 25 legal standards were not applied in weighing the evidence and making the decision. 26 Brawner v. Secr’y of Health & Human Servs., 839 F.2d 432, 433 (9th Cir. 1988). 27 An ALJ is allowed “inconsequential” errors as long as they are immaterial to the 28 ultimate nondisability determination. Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1 1050, 1055 (9th Cir. 2006). The court must uphold the ALJ’s denial of benefits if 2 the evidence is susceptible to more than one rational interpretation, one of which 3 supports the decision of the administrative law judge. Batson v. Barnhart, 359 F.3d 4 1190, 1193 (9th Cir. 2004). It “must consider the entire record as a whole, 5 weighing both the evidence that supports and the evidence that detracts from the 6 Commissioner’s conclusion, and may not affirm simply by isolating a specific 7 quantum of supporting evidence.” Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 8 2017) (quotation omitted). “If the evidence can support either outcome, the court 9 may not substitute its judgment for that of the ALJ.” Matney, 981 F.2d at 1019. 10 IV. Statement of Facts 11 The facts have been presented in the administrative record, the ALJ’s 12 decision, and the briefs to this Court. Only the most relevant facts are summarized 13 here. 14 Plaintiff was 28 years old on the alleged onset date. He graduated from high 15 school and worked as a cashier, cook, customer service representative, and pizza 16 delivery cashier/driver. Plaintiff suffers from hemochromatosis. He must have 17 three or four phlebotomies a year to manage the iron levels in his blood. He 18 describes having joint pain and memory loss. He has difficulty doing anything for 19 more than twenty minutes, including playing video games, typing on the computer, 20 or washing dishes. In January 2018, he was diagnosed with fibromyalgia. He also 21 testified he has irritable bowel syndrome that flares up a couple time a week or 22 more and he experiences tremors and panic attacks a couple of times a week. He 23 takes medication for his panic attacks as needed. 24 Plaintiff worked for Door Dash and was able to work about 10 hours a week. 25 It became too demanding physically. 26 At the hearing, Plaintiff explained he had secured competitive employment 27 that is sedentary and involves simple tasks such as answering phones and typing 28 orders on a computer. His sister’s employer was willing to accommodate him, so 1 he moved to Georgia and is living with her. He is able to take extra breaks if 2 needed, and he can come in late and leave early, or take time off, if needed.2 3 V. The ALJ’s Findings 4 The ALJ issued an opinion affirming denial of benefits. AR 714-730. At step 5 one, the ALJ found that Plaintiff met the insured status requirements of the SSA 6 through March 31, 2024, and had not engaged in substantial gainful activity from 7 December 1, 2013 to September 5, 2022. AR 717. 8 At step two, the ALJ identified the following severe impairments: 9 fibromyalgia and hemochromatosis. AR 717. 10 At step three, the ALJ found that Plaintiff did not have an impairment or 11 combination of impairments that meets or medically equals the severity of one of 12 the listed impairments. AR 719. 13 At step four, the ALJ concluded that Plaintiff has an RFC to perform:

14 y to perform light work as defined in 20 CFR 404.1567(b) and 15 416.967(b) except he can sit for one hour at a time, after which he must be able to stand or move around for few minutes while sitting; 16 he must be able to continue working in the changed position. He can 17 sit in this manner for a total of six hours in an 8-hour day. He can stand and/or walk for a total of two hours in an 8-hour day. He can 18 frequently reach, push, and pull. He can frequently perform fine 19 fingering and gross handling. He can frequently push and/or pull with the lower extremities. He can perform all postural activities 20 occasionally, except he cannot climb ladders, ropes, or scaffolds. He 21 must avoid concentrated exposure to extreme cold, pulmonary irritants, and hazards. He can work in a job with a moderate noise 22 intensity level as the term moderate is defined by the SCO. He can 23 perform simple tasks. AR 720. 24 25 At step five, the ALJ found that Plaintiff was unable to perform any past 26

27 2 In his brief, Plaintiff states that he was no longer able to work his job in Georgia 28 and has moved back to Yakima. 1 relevant work. AR 728. The ALJ found there were jobs that existed in significant 2 numbers in the national economy that Plaintiff could perform, including collator 3 operator, storage facility rental clerk, routing clerk, telephone quotation clerk, call 4 out operator, addresser, and document preparer. Consequently, the ALJ found that 5 Plaintiff was not disabled from December 1, 2013 to November 12, 2024. AR 728- 6 29. 7 VI. Issues 8 1. Whether the ALJ properly evaluated the medical opinion evidence. 9 VII. Discussion 10 Plaintiff asserts the ALJ erred in discounting the opinion of Plaintiff’s 11 treating physician, Dr. Olden. A. Evaluation of the Medical Opinions 12 Plaintiff filed his disability application before March 27, 2017, so the rules 13 in 20 C.F.R. § 416.9271 apply to his claim. 14 To reject the uncontradicted opinion of a treating or examining doctor, the 15 ALJ must state clear and convincing reasons that are supported by substantial 16 evidence. Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (quotation 17 omitted). If a treating or examining doctor’s opinion is contradicted by another 18 doctor’s opinion, an ALJ may only reject it by providing specific and legitimate 19 reasons that are supported by substantial evidence. Id. (quotation omitted). The 20 opinion of a non-examining physician cannot by itself constitute substantial 21 evidence that justifies the rejection of the opinion of either an examining physician 22 or a treating physician. Id. (citation omitted). 23 Id. 24 Dr. Carl Olden 25 Plaintiff’s treating provider, Carl Olden, M.D., drafted an opinion regarding 26 Plaintiff’s functional limitations on December 11, 2020. AR 1701. Dr. Olden noted 27 diagnoses including hemochromatosis, essential tremors, gastrointestinal reflux, 28 1 irritable bowel syndrome, fibromyalgia, and cubital tunnel syndrome. AR1700. Dr. 2 Olden described spells of reactive hypoglycemia, with syncope, chronic tremors, 3 abdominal pains, joint pain, and pain and numbness in the hands. AR1700. Dr. 4 Olden noted that genetic testing and nerve conduction studies supported these 5 diagnoses. AR 1700. Dr. Olden opined that Plaintiff would need to lie down during 6 the day, for one to two hours at a time if he became severely fatigued. AR 1700. 7 Dr. Olden also noted Plaintiff’s treatments could take two to four hours per 8 session. AR 1700. Dr. Olden opined Plaintiff’s conditions would reasonably cause 9 pain, citing Plaintiff’s diffuse fibromyalgia pain, cubital tunnel syndrome, and 10 ulnar nerve pain. AR 1700. Dr. Olden further opined that, if Plaintiff worked, he 11 would deteriorate. AR 1700. Dr. Olden explained fibromyalgia flares would 12 present themselves with heavy activity, such that being able to take breaks is 13 critical. AR1700. Dr. Olden further opined Plaintiff would likely miss work if 14 trying to complete a 40-hour workweek and he would likely be absent four or more 15 days per month. AR 1701. Dr. Olden explained Plaintiff’s phlebotomy 16 appointments required two to three days of monitoring and observed his 17 fibromyalgia or IBS would flare at times. AR 1701. Dr. Olden opined Plaintiff’s 18 conditions were present since at least 2014, and further opined Plaintiff was 19 capable of intermittent sedentary work, but it must be “extraordinarily flexible.” 20 AR 1701. 21 The ALJ gave little weight to Dr. Olden’s opinion. AR 727. The ALJ 22 believed Dr. Olden’s limitations were not consistent with both the longitudinal 23 record and his own treatment notes. AR 727As an example, Dr. Olden’s notes 24 reflect concerns of reactive hypoglycemia only briefing beginning around 25 December 2020 and the symptoms were treated with a diet change, yet he listed 26 reactive hypoglycemia as a diagnoses. AR 727. Dr. Olden also noted Defendant’s 27 hand pain and numbness, but the record did not reflect hand atrophy and most 28 examinations showed no significant abnormalities in strength sensation, grip, or 1 range of motion in the hands or arms. AR 728. Also, the ALJ noted the record 2 rarely mentions tremors. 3 The ALJ’s rejection of Dr. Olden’s opinion is not supported by substantial 4 evidence in the record. The ALJ fails to account that Plaintiff needs to lie down 5 throughout the day due to severe fatigue and that his fibromyalgia flares with 6 heavy activity. On the contrary, Dr. Olden’s notes support his conclusion that 7 Plaintiff would likely miss more than four days a month dur to the required 8 phlebotomy procedures and subsequent monitoring, as well as flare from 9 fibromyalgia. The ALJ’s rationale for rejecting Dr. Olden’s opinion focuses on two 10 symptoms, but ignores all the others that are well-documented in the record. In an 11 attempt to discredit Dr. Odom, the ALJ relied on these two instances having very 12 little bearing on the limitations set forth in his opinion. As such, the ALJ failed to 13 provide legitimate reasons for rejecting Dr. Olden’s opinion. 14 On the contrary, Dr. Olden’s opinion is deserving of great weight 15 as it is “well-supported by medically acceptable clinical and laboratory diagnostic 16 techniques and is not inconsistent with the other substantial evidence in the case 17 record.” It goes without saying that Dr. Olden has the benefit of firsthand treatment 18 and his opinion is supported by his own medical findings and explanations. 19 The only contradictory evidence is from non-treating, non-examining State 20 agency consultants who did nothing more than review select medical records and 21 formulate opinions. The opinions of these non-examining doctors are entitled to 22 less weight than doctors who treated Plaintiff. Benecke v. Barnhart, 379 F.3d 587, 23 592 (9th Cir. 2004). 24 VIII. Conclusion 25 The ALJ failed to provide specific or legitimate reasons to discount the 26 opinion of Dr. Olden. Because the record is developed and if the ALJ would have 27 given Dr. Olden’s opinion proper weight, it would have been required to find that 28 Plaintiff was disable. As such, a remand for an immediate award of benefits is 1|| appropriate. Accordingly, IT IS HEREBY ORDERED: 3 1. For docket purposes, Plaintiff's Opening Brief, ECF No. 10 is GRANTED. 5 2. For docket purposes, the Commissioner’s Response Brief, ECF No. 12, is DENIED. 3. The decision of the Commissioner is REVERSED and remanded for immediate award of benefits. 9 4. Judgment shall be entered in favor of Plaintiff and against Defendant. 10 IT IS SO ORDERED. The District Court Executive is hereby directed to 11|| file this Order, provide copies to counsel, and close the file. 12 DATED this 29th day of August 2025. 13

sin in phar 16 Stan Bastian 7 Chief United States District Judge 18 19 20 21 22 23 24 25 26 27 28 ORDER REVERSING THE DECISION OF COMMISSIONER ~10