Carollo v. Kijakazi

• Court: District Court, E.D. Washington
• Decided: March 22, 2022
• Docket: 4:20-cv-05162
• Status: Unknown

Opinion

1 FILED IN THE U.S. DISTRICT COURT 2 EASTERN DISTRICT OF WASHINGTON Mar 22, 2022 3 4 UNITED STATES DISTRICT COURT SEAN F. MCAVOY, CLERK EASTERN DISTRICT OF WASHINGTON 5 6 DEVIN C., No. 4:20-CV-05162-JAG 7 8 Plaintiff, ORDER GRANTING IN PART PLAINTIFF’S MOTION FOR 9 v. SUMMARY JUDGMENT AND 10 REMANDING FOR ADDITIONAL KILOLO KIJAKAZI, PROCEEDINGS 11 ACTING COMMISSIONER OF 12 SOCIAL SECURITY,1 13 Defendant. 14 15 BEFORE THE COURT are cross-motions for summary judgment. ECF 16 No. 17, 19. Attorney D. James Tree represents Devin C. (Plaintiff); Special 17 Assistant United States Attorney Ryan Lu represents the Commissioner of Social 18 Security (Defendant). The parties have consented to proceed before a magistrate 19 judge. ECF No. 6. After reviewing the administrative record and the briefs filed by 20 the parties, the Court GRANTS IN PART Plaintiff’s Motion for Summary 21 Judgment; DENIES Defendant’s Motion for Summary Judgment; and 22 REMANDS the matter to the Commissioner for additional proceedings pursuant to 23 42 U.S.C. § 405(g). 24

25 1 Kilolo Kijakazi became the Acting Commissioner of Social Security on 26 July 9, 2021. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, 27 Kilolo Kijakazi is substituted for Andrew M. Saul as the defendant in this suit. No 28 further action need be taken to continue this suit. See 42 U.S.C. § 405(g). 1 JURISDICTION 2 Plaintiff filed an application for Supplemental Security Income on March 22, 3 2018, alleging disability since July 13, 2017, due to chronic fatigue syndrome, 4 severe abdominal pain (epigastric), anxiety, irritable bowel syndrome, allergies, 5 vitamin deficiency, chronic nausea, hearing loss, iron deficiency, and 6 dysmenorrhea. Tr. 151-52. The application was denied initially and upon 7 reconsideration. Tr. 173-76, 180-82. Administrative Law Judge (ALJ) Stewart 8 Stallings held a hearing on September 30, 2019, Tr. 76-104, and issued an 9 unfavorable decision on October 17, 2019, Tr. 21-33. Plaintiff requested review of 10 the ALJ’s decision by the Appeals Council and the Appeals Council denied the 11 request for review on July 30, 2020. Tr. 1-6. The ALJ’s October 2019 decision is 12 the final decision of the Commissioner, which is appealable to the district court 13 pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action for judicial review on 14 September 16, 2020. ECF No. 1. 15 STATEMENT OF FACTS 16 Plaintiff was born in 1981 and was 36 years old when she filed her 17 application. Tr. 32. She has a high school education and at the time of her hearing 18 she was working on her Associate’s degree one class at a time. Tr. 80. She has a 19 minimal work history, having last worked in 2006 at a movie theater. Tr. 318. She 20 has alleged disabling pain, nausea and IBS symptoms, particularly each month 21 during her menstrual period. Tr. 81-82, 85, 864, 1112. 22 STANDARD OF REVIEW 23 The ALJ is responsible for determining credibility, resolving conflicts in 24 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 25 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 26 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 27 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 28 only if it is not supported by substantial evidence or if it is based on legal error. 1 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 2 defined as being more than a mere scintilla, but less than a preponderance. Id. at 3 1098. Put another way, substantial evidence is such relevant evidence as a 4 reasonable mind might accept as adequate to support a conclusion. Richardson v. 5 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one 6 rational interpretation, the Court may not substitute its judgment for that of the 7 ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 8 169 F.3d 595, 599 (9th Cir. 1999). If substantial evidence supports the 9 administrative findings, or if conflicting evidence supports a finding of either 10 disability or non-disability, the ALJ’s determination is conclusive. Sprague v. 11 Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision 12 supported by substantial evidence will be set aside if the proper legal standards 13 were not applied in weighing the evidence and making the decision. Brawner v. 14 Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 15 SEQUENTIAL EVALUATION PROCESS 16 The Commissioner has established a five-step sequential evaluation process 17 for determining whether a person is disabled. 20 C.F.R. § 416.920(a); Bowen v. 18 Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through four, the claimant 19 bears the burden of establishing a prima facie case of disability. Tackett, 180 F.3d 20 at 1098-1099. This burden is met once a claimant establishes that a physical or 21 mental impairment prevents the claimant from engaging in past relevant work. 20 22 C.F.R. § 416.920(a)(4). If a claimant cannot perform past relevant work, the ALJ 23 proceeds to step five, and the burden shifts to the Commissioner to show (1) the 24 claimant can make an adjustment to other work; and (2) the claimant can perform 25 specific jobs that exist in the national economy. Batson v. Commissioner of Social 26 Sec. Admin., 359 F.3d 1190, 1193-1194 (9th Cir. 2004). If a claimant cannot make 27 an adjustment to other work in the national economy, the claimant will be found 28 disabled. 20 C.F.R. § 416.920(a)(4)(v). 1 ADMINISTRATIVE FINDINGS 2 On October 17, 2019, the ALJ issued a decision finding Plaintiff was not 3 disabled as defined in the Social Security Act. Tr. 21-33. 4 At step one, the ALJ found Plaintiff had not engaged in substantial gainful 5 activity since the application date. Tr. 24. 6 At step two, the ALJ determined Plaintiff had the following severe 7 impairments: abdominal pain/irritable bowel syndrome (IBS) with nausea; 8 dysmenorrhea; chronic fatigue; anxiety; somatic disorder, and heavy metal 9 toxicity. Id. 10 At step three, the ALJ found Plaintiff did not have an impairment or 11 combination of impairments that met or medically equaled the severity of one of 12 the listed impairments. Tr. 25-27. 13 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and found 14 she could perform a range of sedentary work, with the following limitations:

15 She can lift up to ten pounds occasionally; stand or walk for up to 2 16 hours in an eight-hour workday, and sit for up to 8 hours in an eight- 17 hour workday with normal breaks. She can frequently climb ramps and stairs. She can occasionally climb ladders, ropes, or scaffolds. She can 18 occasionally stoop. She can frequently crouch, kneel, or crawl. She 19 should avoid anything more than occasional use of dangerous moving machinery or exposure to unprotected heights. She should be limited to 20 a low stress job, defined as not requiring the worker to cope with work 21 related circumstances that could be dangerous to the worker or others. Specifically, she should not perform production pace conveyer belt 22 type-work, or management type-work. She should further be limited to 23 routine and repetitive work type tasks, which could be complex in 24 nature. Further, the claimant would need a predictable work environment with only occasional simple workplace changes. 25

26 Tr. 27. 27 At step four, the ALJ found Plaintiff had no past relevant work. Tr. 32. 28 1 At step five the ALJ found that, considering Plaintiff’s age, education, work 2 experience and residual functional capacity, Plaintiff could perform jobs that 3 existed in significant numbers in the national economy, specifically identifying the 4 representative occupations of receptionist and dispatcher. Tr. 32-33. 5 The ALJ thus concluded Plaintiff was not under a disability within the 6 meaning of the Social Security Act at any time from the date the application was 7 filed through the date of the decision. Tr. 33. 8 ISSUES 9 The question presented is whether substantial evidence supports the ALJ’s 10 decision denying benefits and, if so, whether that decision is based on proper legal 11 standards. 12 Plaintiff contends the Commissioner erred by (1) improperly rejecting 13 Plaintiff’s subjective complaints; and (2) improperly rejecting medical opinion 14 evidence. 15 DISCUSSION 16 1. Plaintiff’s subjective statements 17 Plaintiff contends the ALJ erred by improperly rejecting her subjective 18 complaints. ECF No. 17 at 5-9. 19 It is the province of the ALJ to make determinations regarding a claimant’s 20 subjective statements. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 21 However, the ALJ’s findings must be supported by specific, cogent reasons. 22 Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Once the claimant 23 produces medical evidence of an underlying medical impairment, the ALJ may not 24 discredit testimony as to the severity of an impairment merely because it is 25 unsupported by medical evidence. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 26 1998). Absent affirmative evidence of malingering, the ALJ’s reasons for rejecting 27 the claimant’s testimony must be “specific, clear and convincing.” Smolen v. 28 Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Lester v. Chater, 81 F.3d 821, 834 1 (9th Cir. 1996). “General findings are insufficient: rather the ALJ must identify 2 what testimony is not credible and what evidence undermines the claimant’s 3 complaints.” Lester, 81 F.3d at 834; Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 4 1993). 5 The ALJ concluded Plaintiff’s medically determinable impairments could 6 reasonably be expected to cause the alleged symptoms; however, Plaintiff’s 7 statements concerning the intensity, persistence and limiting effects of those 8 symptoms were not entirely consistent with the medical evidence and other 9 evidence in the record. Tr. 28. The ALJ found Plaintiff’s complaints were 10 unsupported by the objective findings and found that her routine course of 11 treatment was effective. Tr. 28-29. 12 Plaintiff argues the ALJ improperly rejected her subjective complaints based 13 on the objective findings alone, and made factual errors in his summary of the 14 objective evidence. ECF No. 17 at 5-9. Defendant argues the ALJ reasonably 15 interpreted the medical records as unsupportive of Plaintiff’s complaints and 16 permissibly found the routine, conservative care effectively controlled her 17 conditions, and that Plaintiff inexplicably failed to follow recommended treatment. 18 ECF No. 19 at 3-8. 19 The Court finds the ALJ failed to offer clear and convincing reasons for 20 disregarding Plaintiff’s subjective complaints. An ALJ may cite inconsistencies 21 between a claimant’s testimony and the objective medical evidence in discounting 22 the claimant’s symptom statements. Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 23 1219, 1227 (9th Cir. 2009). But this cannot be the only reason provided by the 24 ALJ. See Lester, 81 F.3d at 834 (the ALJ may not discredit the claimant’s 25 testimony as to subjective symptoms merely because they are unsupported by 26 objective evidence); see Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) 27 (Although it cannot serve as the sole ground for rejecting a claimant’s credibility, 28 objective medical evidence is a “relevant factor in determining the severity of the 1 claimant’s pain and its disabling effects.”). The ALJ summarized Plaintiff’s 2 records and noted a number of normal findings regarding her physical and mental 3 status. Tr. 28-29. The Court finds the ALJ’s summary of the treatment records and 4 finding that the objective evidence did not support Plaintiff’s subjective complaints 5 is an insufficient basis on its own for discounting Plaintiff’s reports. 6 To the extent the ALJ implied Plaintiff’s course of treatment was “routine” 7 and helped control her symptoms, there is no indication that Plaintiff’s conditions 8 were subject to any more aggressive treatments, or that she experienced any lasting 9 relief of her symptoms or improvement to the point of being able to work. Tr. 867, 10 871, 1064, 1066. Dr. Karlson indicated that Plaintiff’s conditions continued to 11 impair her, despite extensive workups and consults with specialists. Tr. 1116. Dr. 12 Rawlins noted treatment had helped “a little,” but that Plaintiff’s response was 13 inconsistent over time, and that some days she felt much better than others. Tr. 14 1121. Therefore, the Commissioner’s argument that the ALJ reasonably found 15 Plaintiff’s conservative treatment to be effective is not supported by substantial 16 evidence. 17 Defendant further indicates Plaintiff’s subjective complaints were not 18 reliable because she failed to follow through with dietary treatment 19 recommendations for her heavy metal toxicity. ECF No. 19 at 6-7. The ALJ did not 20 rely on this fact in discussing why he found Plaintiff’s reports unreliable. 21 Therefore, the Court will not consider this rationale. See Orn v. Astrue, 495 F.3d 22 625, 630 (9th Cir. 2007) (The Court will “review only the reasons provided by the 23 ALJ in the disability determination and may not affirm the ALJ on a ground upon 24 which he did not rely.”). 25 On remand, the ALJ will reconsider Plaintiff’s subjective complaints. 26 27 28 1 2. Medical opinions 2 Plaintiff argues the ALJ erred in evaluating the medical opinion evidence. 3 ECF No. 17 at 9-18. She argues the ALJ improperly rejected the opinions from 4 Drs. Marks, Karlson, and Rawlins. Id. 5 For claims filed on or after March 27, 2017, new regulations apply that 6 change the framework for how an ALJ must weigh medical opinion evidence. 7 Revisions to Rules Regarding the Evaluation of Medical Evidence, 2017 WL 8 168819, 82 Fed. Reg. 5844 (Jan. 18, 2017); 20 C.F.R. § 416.920c. The new 9 regulations provide the ALJ will no longer give any specific evidentiary weight to 10 medical opinions or prior administrative medical findings, including those from 11 treating medical sources. 20 C.F.R. § 416.920c(a). Instead, the ALJ will consider 12 the persuasiveness of each medical opinion and prior administrative medical 13 finding, regardless of whether the medical source is an Acceptable Medical Source. 14 20 C.F.R. § 416.920c(c). The ALJ is required to consider multiple factors, 15 including supportability, consistency, the source’s relationship with the claimant, 16 any specialization of the source, and other factors (such as the source’s familiarity 17 with other evidence in the file or an understanding of Social Security’s disability 18 program). Id. The regulations make clear that the supportability and consistency of 19 the opinion are the most important factors, and the ALJ must articulate how they 20 considered those factors in determining the persuasiveness of each medical opinion 21 or prior administrative medical finding. 20 C.F.R. § 416.920c(b). The ALJ may 22 explain how they considered the other factors, but is not required to do so, except 23 in cases where two or more opinions are equally well-supported and consistent 24 with the record. Id. 25 Supportability and consistency are further explained in the regulations:

26 (1) Supportability. The more relevant the objective medical evidence 27 and supporting explanations presented by a medical source are to 28 support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior 1 administrative medical finding(s) will be. 2 3 (2) Consistency. The more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other 4 medical sources and nonmedical sources in the claim, the more 5 persuasive the medical opinion(s) or prior administrative medical finding(s) will be. 6

7 20 C.F.R. § 416.920c(c). 8 a. Dr. Marks 9 Plaintiff attended a consultative psychological exam for Washington State 10 Department of Social and Health Services in February 2018 with Dr. N.K. Marks. 11 Tr. 998-1003. Dr. Marks diagnosed Plaintiff with somatic symptom disorder and 12 opined she would have primarily mild to moderate impairment in work-related 13 functions, but would be markedly impaired in being aware of normal hazards and 14 taking appropriate precautions and in setting realistic goals and planning 15 independently. Tr. 1000. 16 The ALJ found this opinion was not persuasive, noting it was not supported 17 by Dr. Marks’ cursory evaluation with lack of explanation to support the 18 limitations and the almost entirely unremarkable mental status exam. Tr. 30. The 19 ALJ further found the opinion was inconsistent with the longitudinal medical 20 record showing minimal mental health treatment and generally unremarkable 21 mental status findings. Id. 22 Plaintiff argues the ALJ erred in failing to explain what he found to be 23 cursory about Dr. Marks’ exam, noting that it included a mental status exam, 24 clinical interview, and review of a prior assessment. ECF No. 17 at 11. She further 25 argues that while some of the mental status findings were normal, others were 26 abnormal, and those abnormal findings support the opinion. Id. at 12. Finally, she 27 argues the opinion is consistent with other opinions in the file indicating disabling 28 1 limitations. Id. at 13. Defendant argues the ALJ’s rationale was sufficient, and 2 Plaintiff merely offers an alternative interpretation of the evidence. ECF No. 19 at 3 12. Defendant additionally asserts that any error on the part of the ALJ was 4 harmless at most, as the only marked limitations assessed by Dr. Marks are 5 accounted for in the RFC. Id. at 10-11. 6 The Court finds any error was harmless as the RFC accounts for the 7 limitations Dr. Marks assessed.2 However, as this claim is being remanded for 8 further proceedings, the ALJ shall reconsider the medical evidence in completing 9 the five-step analysis. 10 b. Dr. Karlson 11 Plaintiff’s treating doctor, Katie Karlson completed a disability verification 12 form for DSHS in February 2018, in which she noted Plaintiff had moderate to 13 severe limitations at various times, stemming from chronic fatigue, IBS, anxiety, 14 painful menstrual periods, and abdominal/epigastric pain. Tr. 1005. She opined 15 Plaintiff was severely limited and unable to meet the demands of sedentary work. 16 Tr. 1006. Doctor Karlson also completed a medical source statement for Plaintiff’s 17 disability claim in 2019 in which she noted Plaintiff needed to lie down during the 18 day, that full-time work would cause her condition to deteriorate, and that she 19 would be likely to miss four or more days of work per month. Tr. 1074-75. 20 The ALJ found these opinions to not be persuasive, noting Plaintiff’s reports 21 of only mild anxiety symptoms, typically normal mental status presentation, and 22 lack of counseling. Tr. 31. The ALJ further noted Plaintiff’s completely 23 unremarkable physical exam the day Dr. Karlson completed the paperwork, and 24 25

26 2 As the ALJ found this opinion to not be persuasive, it would appear that 27 the ALJ interpreted the opinion as assessing limitations greater than those the ALJ 28 ultimately included in the RFC. On remand, the ALJ should clarify his position. 1 found the opinion was inconsistent with the longitudinal record showing 2 conservative treatment and few objective signs of impairment on exam. Id. 3 The Court finds the ALJ did not err. The more relevant the objective medical 4 evidence and supporting explanations presented and the more consistent an opinion 5 is with the longitudinal record, the more persuasive it will be. The ALJ reasonably 6 considered the most important factors of consistency and supportability, and 7 reasonably interpreted the records in finding Dr. Karlson’s opinion to be 8 inconsistent with the lack of objective findings on her own exam and throughout 9 the record. However, as this claim is being remanded on other bases, the ALJ will 10 reconsider all of the medical evidence, including any additional evidence that may 11 be presented upon remand. 12 c. Dr. Rawlins 13 Plaintiff’s treating gynecologist, Dr. Rawlins, completed a medical source 14 statement in May 2019 in which he noted Plaintiff needed to lie down during the 15 day due to extreme fatigue and would be likely to miss four or more days of work. 16 Tr. 1076-77. 17 The ALJ found this opinion to not be persuasive because it appeared to be 18 overly reliant on Plaintiff’s subjective complaints and unsupported by objective 19 clinical exam findings. Tr. 31. The ALJ further noted that the longitudinal record 20 did not describe Plaintiff as lethargic or fatigued, despite her subjective complaints. 21 Tr. 32. 22 Plaintiff argues there was no basis for the ALJ to conclude that the opinion 23 was more based on Plaintiff’s subjective reports than on Dr. Rawlins’ professional 24 judgments and clinical observations, and also reiterates that the ALJ improperly 25 rejected Plaintiff’s subjective complaints. ECF No. 17 at 17-18. Defendant argues 26 the ALJ’s reasoning is supported by substantial evidence, and that the ALJ 27 reasonably considered the supportability and consistency of the opinion. ECF No. 28 19 at 15-16. 1 The Court finds the ALJ reasonably considered the factors of supportability 2 and consistency, and that his interpretation of the record was reasonable. However, 3 as this claim is being remanded for further proceedings, the ALJ will reconsider 4 the opinion evidence, along with any additional evidence submitted on remand. 5 CONCLUSION 6 Plaintiff argues the decision should be reversed and remanded for the 7 payment of benefits. The Court has the discretion to remand the case for additional 8 evidence and findings or to award benefits. Smolen v. Chater, 80 F.3d 1273, 1292 9 (9th Cir. 1996). The Court may award benefits if the record is fully developed and 10 further administrative proceedings would serve no useful purpose. Id. Remand is 11 appropriate when additional administrative proceedings could remedy defects. 12 Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989). In this case, the Court 13 finds that further development is necessary for a proper determination. 14 The ALJ’s decision is not supported by substantial evidence. On remand, the 15 ALJ shall reevaluate Plaintiff’s subjective complaints and the medical evidence of 16 record, making findings on each of the five steps of the sequential evaluation 17 process, obtain supplemental testimony from a vocational expert as needed, and 18 take into consideration any other evidence or testimony relevant to Plaintiff’s 19 disability claim.3 20 Accordingly, IT IS ORDERED: 21 1. Plaintiff’s Motion for Summary Judgment, ECF No. 17, is 22 GRANTED IN PART. 23

24 3 Though not raised by the parties, the Court also takes note that the step five 25 findings consisted of semi-skilled jobs without the ALJ making any finding that 26 Plaintiff has acquired skills that are transferrable to semi-skilled work, in violation 27 of Ninth Circuit caselaw. See Barnes v. Berryhill, 895 F.3d 702 (9th Cir. 2018). On 28 remand, the ALJ should take care to make legally sufficient step five findings. 1 2. Defendant’s Motion for Summary Judgment, ECF No. 19, is 2|| DENIED. 3 3. The matter is REMANDED to the Commissioner for additional 4|| proceedings consistent with this Order. 5 4. An 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 to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff and 8]| the file shall be CLOSED. 9 IT IS SO ORDERED. 10 DATED March 22, 2022.

12 JAMES A. GOEKE 13 [a UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28