Carstensen v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: February 12, 2021
• Docket: 3:20-cv-05733
• Status: Unknown

Opinion

05 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 06 AT SEATTLE

07 LEIF C., ) ) CASE NO. C20-5733-MAT 08 Plaintiff, ) ) 09 v. ) ) ORDER RE: SOCIAL SECURITY 10 COMMISSIONER OF SOCIAL ) DISABILITY APPEAL SECURITY, ) 11 ) Defendant. ) 12 ____________________________________ )

13 Plaintiff proceeds through counsel in his appeal of a final decision of the 14 Commissioner of the Social Security Administration (Commissioner). The Commissioner 15 denied Plaintiff’s application for Disability Insurance Benefits (DIB) after a hearing before an 16 Administrative Law Judge (ALJ). Having considered the ALJ’s decision, the administrative 17 record (AR), and all memoranda of record, this matter is REVERSED and REMANDED for 18 further administrative proceedings. 19 FACTS AND PROCEDURAL HISTORY 20 Plaintiff was born on XXXX, 1980.1 He has an 11th-grade education and previously 21 worked as a fisherman, concrete mason, and RV technician. (AR 197.) 22 1 Dates of birth must be redacted to the year. Fed. R. Civ. P. 5.2(a)(2) and LCR 5.2(a)(1). 01 Plaintiff applied for DIB in September 2017. (AR 171-72.) That application wa s 02 denied and Plaintiff timely requested a hearing. (AR 102-04, 108-17.) 03 In June 2019, ALJ Kimberly Boyce held a hearing, taking testimony from Plaintiff and 04 a vocational expert (VE). (AR 32-63.) In August 2019, the ALJ issued a decision finding 05 Plaintiff not disabled. (AR 15-26.) Plaintiff timely appealed. The Appeals Council denied 06 Plaintiff’s request for review in May 2020 (AR 1-6), making the ALJ’s decision the final 07 decision of the Commissioner. Plaintiff appealed this final decision of the Commissioner to 08 this Court. 09 JURISDICTION 10 The Court has jurisdiction to review the ALJ’s decision pursuant to 42 U.S.C. § 11 405(g).

12 DISCUSSION 13 The Commissioner follows a five-step sequential evaluation process for determining 14 whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920 (2000). At step one, it 15 must be determined whether the claimant is gainfully employed. The ALJ found Plaintiff had 16 not engaged in substantial gainful activity since August 23, 2015, the alleged onset date. (AR 17 17.) At step two, it must be determined whether a claimant suffers from a severe impairment. 18 The ALJ found severe Plaintiff’s degenerative disc disease, obstructive sleep apnea, obesity, 19 depressive disorder, and anxiety disorder. (AR 17.) Step three asks whether a claimant’s 20 impairments meet or equal a listed impairment. The ALJ found that Plaintiff’s impairments

21 did not meet or equal the criteria of a listed impairment. (AR 18-19.) 22 If a claimant’s impairments do not meet or equal a listing, the Commissioner must 01 assess residual functional capacity (RFC) and determine at step four whether the claimant ha s 02 demonstrated an inability to perform past relevant work. The ALJ found Plaintiff capable of 03 performing light work with additional limitations: he can never climb ladders, ropes, or 04 scaffolds. He cannot work at unprotected heights or in proximity to hazards such as heavy 05 machinery and dangerous moving parts. He can occasionally climb ramps and stairs, balance, 06 stoop, kneel, crouch, and crawl. He can perform work in which concentrated exposure to 07 pulmonary irritants or vibration is present. He can understand, remember and carry out 08 simple, routine tasks and follow short simple instructions. He can perform work that requires 09 little or no judgment and can perform simple duties that can be learned on the job in a short 10 period. He can perform work that does not require interaction with the general public as an 11 essential element of the job, but occasional incidental contact with the general public is not

12 precluded. (AR 19.) With that assessment, the ALJ found Plaintiff unable to perform past 13 relevant work. (AR 24.) 14 If a claimant demonstrates an inability to perform past relevant work, the burden shifts 15 to the Commissioner to demonstrate at step five that the claimant retains the capacity to make 16 an adjustment to work that exists in significant levels in the national economy. With the 17 assistance of the VE, the ALJ found Plaintiff capable of transitioning to other representative 18 occupations, such as electrical accessories bench assembler, small products assembler, and 19 table worker. (AR 24-25.) 20 This Court’s review of the ALJ’s decision is limited to whether the decision is in

21 accordance with the law and the findings supported by substantial evidence in the record as a 22 whole. See Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993). Substantial evidence means 01 more than a scintilla, but less than a preponderance; it means such relevant evidence as a 02 reasonable mind might accept as adequate to support a conclusion. Magallanes v. Bowen, 881 03 F.2d 747, 750 (9th Cir. 1989). If there is more than one rational interpretation, one of which 04 supports the ALJ’s decision, the Court must uphold that decision. Thomas v. Barnhart, 278 05 F.3d 947, 954 (9th Cir. 2002). 06 Plaintiff argues the ALJ erred in (1) discounting his subjective symptom testimony, (2) 07 assessing certain medical evidence and opinions, and (3) failing to discuss the lay evidence. 08 The Commissioner argues that the ALJ’s decision is supported by substantial evidence and 09 should be affirmed. 10 Lay evidence 11 The record contains statements from Plaintiff’s former employer as well as a

12 vocational consultant, who was apparently retained in the context of a personal injury lawsuit 13 stemming from Plaintiff’s 2011 car accident. (AR 184-88, 212-19, 292-99.) Plaintiff’s 14 mother-in-law and sister-in-law also wrote statements. (AR 281-90.) The ALJ did not 15 discuss any of this evidence in the decision. 16 Lay witness testimony as to a claimant’s symptoms or how an impairment affects 17 ability to work is competent evidence and cannot be disregarded without comment. Van 18 Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). But see Molina v. Astrue, 674 F.3d 19 1104, 1115-22 (9th Cir. 2012) (describing how the failure to address lay testimony may be 20 harmless). The ALJ can reject the testimony of lay witnesses only upon giving germane

21 reasons. Smolen v. Chater, 80 F.3d 1273, 1288-89 (9th Cir. 1996). 22 Although the Commissioner contends that the ALJ’s failure to discuss the lay 01 evidence is harmless, the Court cannot agree as to the statements from Plaintiff’s forme r 02 employer and the vocational consultant. The statements from Plaintiff’s family members 03 could arguably be said to reiterate Plaintiff’s own complaints, such that the ALJ’s discounting 04 of Plaintiff’s testimony would apply with equal force to these statements. See Molina, 674 05 F.3d at 1120-22. 06 But the perspectives of Plaintiff’s former employer and the vocational consultant are 07 unique and offer a different view of Plaintiff’s limitations, and therefore the ALJ’s reasoning 08 with respect to Plaintiff’s testimony is not logically transferable to all of the lay statements. 09 The vocational consultant, for example, addressed the impact of reaching and keyboarding 10 limitations (apparently indicated in a medical opinion that was not before the ALJ). (See AR 11 186-87.) Plaintiff’s former employer also discussed inter alia limitations as to Plaintiff’s

12 ability to lift and reach, and outlined Plaintiff’s symptoms in the context of a work 13 environment. (See AR 298-99.) The ALJ herself noted at the hearing that Plaintiff’s case was 14 “very well documented, especially with information from your employer” (AR 62-63), which 15 further suggests that the employer’s statement constitutes probative evidence. As such, the 16 Court finds that the ALJ harmfully erred in failing to discuss the lay evidence, and therefore 17 remands this case to allow the ALJ to explicitly discuss the lay statements. 18 Subjective symptom testimony 19 The ALJ discounted Plaintiff’s allegations because (1) the record contained many 20 normal objective physical findings that contradict Plaintiff’s allegation of disabling physical

21 impairments, (2) the record demonstrates improvement with use of a spinal cord stimulator, 22 (3) Plaintiff can complete his daily activities independently, and (4) his mental limitations 01 were primarily related to situational stressors (personal injury lawsuit, water well right s 02 dispute with a neighbor) and improved with medication. (AR 20-23.) Plaintiff argues that 03 these reasons are not clear and convincing, as required in the Ninth Circuit. Burrell v. Colvin, 04 775 F.3d 1133, 1136-37 (9th Cir. 2014). 05 Plaintiff argues that the ALJ’s first reason for discounting his allegations— 06 inconsistency with the objective medical record — is not sufficiently specific because the ALJ 07 did not link this finding to any particular allegation. Dkt. 10 at 6. This argument is not 08 persuasive: the ALJ summarized Plaintiff’s physical allegations in the section preceding her 09 evaluation of the allegations, and the Court can discern the ALJ’s link between the allegations 10 and the objective evidence. (See AR 20 (listing Plaintiff’s alleged sitting, standing, lifting, 11 stooping, bending, and handling limitations).) Plaintiff also argues that this reason alone

12 could not support the ALJ’s assessment of his allegations (Dkt. 10 at 6), but, as explained 13 above, the ALJ did not rely on this reason alone. 14 Plaintiff goes on to argue that the ALJ overlooked physical therapy records that 15 corroborate his allegations, but Plaintiff fails to acknowledge that these physical therapy 16 records date prior to the placement of his spinal cord stimulator, which alleviated some of 17 Plaintiff’s symptoms. (AR 428-40.) Furthermore, the physical therapist noted that Plaintiff’s 18 reports of pain do not correspond to the imaging evidence, which raised a “red flag” in the 19 physical therapist’s mind. (AR 439.) The physical therapist’s notes do not reasonably 20 contradict the evidence explicitly discussed by the ALJ, and do not necessarily corroborate

21 Plaintiff’s allegations, and therefore Plaintiff has failed to show that the ALJ mischaracterized 22 the evidence in assessing his allegations. 01 Plaintiff also disputes whether his treatment could be fairly characterized a s 02 “conservative,” as the ALJ claimed. (AR 21.) The Court agrees that epidural steroid 03 injections and a spinal cord stimulator may not constitute “conservative” treatment, but the 04 ALJ cited substantial evidence showing that Plaintiff’s symptoms did improve with these 05 treatments, particularly the spinal cord stimulator. (AR 21-22.) Plaintiff contends that even 06 with that improvement, some limitations still remained (Dkt. 10 at 8-9), and the ALJ’s 07 decision is not necessarily inconsistent with that contention: the ALJ’s RFC assessment limits 08 Plaintiff to light work with additional physical restrictions. (AR 19.) Plaintiff has failed to 09 show that the ALJ erred in finding that Plaintiff’s functioning improved with treatment, or in 10 discounting his allegations on that basis. See Wellington v. Berryhill, 878 F.3d 867, 876 (9th 11 Cir. 2017) (“[E]vidence of medical treatment successfully relieving symptoms can undermine

12 a claim of disability.”); Morgan v. Comm’r of Social Sec. Admin., 169 F.3d 595, 599-600 (9th 13 Cir. 1999) (contrary to claimant’s claims of lack of improvement, physician reported 14 symptoms improved with use of medication). 15 Plaintiff also challenges the ALJ’s finding that his allegations were undermined by his 16 activities, when the ALJ did not point to any activities that significantly contradicted his 17 allegations. Dkt. 10 at 9. The Court agrees that the ALJ’s finding is not well-supported on 18 this point. (AR 22.) This error is harmless, however, in light of the ALJ’s other independent, 19 valid reasons to discount Plaintiff’s allegations. See Carmickle v. Comm’r of Social Sec. 20 Admin., 533 F.3d 1155, 1162-63 (9th Cir. 2008). Accordingly, the Court affirms the ALJ’s

21 assessment of Plaintiff’s allegations. 22 / / / 01 Medical evidence 02 Plaintiff challenges the ALJ’s assessment of the medical opinion evidence. The ALJ 03 explained that he found one of the State agency opinions to be somewhat persuasive and 04 others to be persuasive, and found a treating doctor’s September 2019 letter to be 05 unpersuasive. (AR 23-24.) Specifically, the ALJ found the State agency opinions persuasive 06 to the extent that they were consistent with the medical record, and found the treating doctor’s 07 letter unpersuasive because it was inconsistent with the medical record. (Id.) 08 Because Plaintiff applied for benefits after March 27, 2017, new regulations apply to 09 the ALJ’s evaluation of medical opinion evidence. Under the regulations, an ALJ “will not 10 defer or give any specific evidentiary weight, including controlling weight, to any medical 11 opinion(s) or prior administrative medical finding(s)[.]” 20 C.F.R. §§ 404.1520c(a),

12 416.920c(a).2 The ALJ must articulate and explain the persuasiveness of an opinion or prior 13 finding based on “supportability” and “consistency,” the two most important factors in the 14 evaluation. Id. at (a), (b)(1)-(2). The “more relevant the objective medical evidence and 15 supporting explanations presented” and the “more consistent” with evidence from other 16 sources, the more persuasive a medical opinion or prior finding. Id. at (c)(1)-(2). The ALJ 17 may but is not required to explain how other factors were considered, as appropriate, 18 including relationship with the claimant (length, purpose, and extent of treatment relationship; 19 frequency of examination); whether there is an examining relationship; specialization; and 20

21 2 “A prior administrative medical finding is a finding, other than the ultimate determination about [disability], about a medical issue made by our Federal and State agency medical and 22 psychological consultants at a prior level of review . . . in [a] claim based on their review of the evidence in your case record[.]” 20 C.F.R. §§ 404.1513(a)(5), 416.913(a)(5). 01 other factors, such as familiarity with other evidence in the claim file or understanding of th e 02 Social Security disability program’s policies and evidentiary requirements. Id. at (b)(2), 03 (c)(3)-(5). But see id. at (b)(3) (where finding two or more opinions/findings about same 04 issue equally supported and consistent with the record, but not exactly the same, ALJ will 05 articulate how other factors were considered). Where a single medical source provides 06 multiple opinions or findings, the ALJ conducts a single analysis and need not articulate how 07 each opinion or finding is considered individually. Id. at (b)(1). 08 In this case, Plaintiff argues that the ALJ should have found the State agency opinions 09 to be unpersuasive because they were unexplained, but this argument is not well-supported. 10 The State agency consultants summarized the medical evidence considered, and identified the 11 limitations that they found to be established by that evidence. (See AR 76-87, 89-101.) These

12 opinions summarize more supporting evidence than the treating doctor’s letter, which Plaintiff 13 urges the Court to find to be better explained. (See AR 826.) Furthermore, in arguing that the 14 record actually corroborates the treating doctor’s opinion, Plaintiff reiterates the same 15 arguments considered and rejected by the Court with respect to Plaintiff’s allegations. See 16 Dkt. 10 at 10-11. Plaintiff’s alternate interpretation of the record is not sufficient to establish 17 error in the ALJ’s decision. See Jamerson v. Chater, 112 F.3d 1064, 1067 (9th Cir. 1997) 18 (“[T]he key question is not whether there is substantial evidence that could support a finding 19 of disability, but whether there is substantial evidence to support the Commissioner’s actual 20 finding that claimant is not disabled.”).

21 Plaintiff has failed to show that the ALJ’s findings are not supported by substantial 22 evidence or are unreasonable, and thus has failed to show that the ALJ erred in assessing the 01 medical opinions. 02 CONCLUSION 03 For the reasons set forth above, this matter is REVERSED and REMANDED for 04 further administrative proceedings. On remand, the ALJ shall consider and address the lay 05 statements, and reconsider any other portions of the decision as necessary. 06 DATED this 12th day of February, 2021.

07 A 08 Mary Alice Theiler 09 United States Magistrate Judge

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