Colgrove v. O'Malley

• Court: District Court, E.D. Washington
• Decided: August 11, 2022
• Docket: 1:21-cv-03141
• Status: Unknown

Opinion

1 Aug 11, 2022 2 SEAN F. MCAVOY, CLERK 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON 6 7 CHARLES HAL C.,1 8 Plaintiff, No. 1:21-CV-03141-SAB 9 v. 10 COMMISSIONER OF SOCIAL ORDER GRANTING 11 SECURITY,2 PLAINTIFF’S MOTION FOR 12 Defendant. SUMMARY JUDGMENT; 13 DENYING DEFENDANT’S 14 MOTION FOR SUMMARY 15 JUDGMENT 16 17 Before the Court are Cross-Motions for Summary Judgment. ECF Nos. 9, 18 11. The motions were heard without oral argument. Plaintiff is represented by D. 19 James Tree; Defendant is represented by John Drenning and Brian Donovan. 20 Plaintiff brings this action seeking judicial review of the Commissioner of 21 Social Security’s final decision denying his application for Supplemental Security 22 Income (SSI) under Title XVI of the Social Security Act, 42 U.S.C. §§ 1382. After 23

24 1 Pursuant to the recommendation of the Committee on Court Administration and 25 Case Management of the Judicial Conference of the United States, Plaintiff’s name 26 is partially redacted. 27 2Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 28 2021. 1 reviewing the administrative record and briefs filed by the parties, the Court is now 2 fully informed. For the reasons set forth below, the Court grants Plaintiff’s Motion 3 for Summary Judgment, ECF No. 9, and denies Defendant’s Motion for Summary 4 Judgment, ECF No. 11. 5 I. Jurisdiction 6 On May 20, 2019, Plaintiff filed an application for supplemental security 7 income. He alleged disability beginning February 1, 2015. 8 Plaintiff’s application was denied initially and on reconsideration. March 20, 9 2020, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). 10 On February 16, 2021, Plaintiff appeared and testified by telephone before ALJ 11 Erin Justice, who presided from Denver, Colorado. He was represented by his 12 attorney, D. James Tree. Also appearing and testifying was William Tysdal, 13 vocational expert. The ALJ issued a decision on February 26, 2021, finding that 14 Plaintiff was not disabled. 15 Plaintiff requested review by the Appeals Council; the Appeals Council 16 denied the request on August 26, 2021. The Appeals Council’s denial of review 17 makes the ALJ’s decision the “final decision” of the Commissioner of Social 18 Security, which this Court is permitted to review. 42 U.S.C. § 405(g), 19 1383(c)(1)(3). 20 Plaintiff filed a timely appeal with the United States District Court for the 21 Eastern District of Washington on January 13, 2021. ECF No. 1. The matter is 22 before this Court pursuant to 42 U.S.C. § 405(g). 23 II. Five-Step Sequential Evaluation Process 24 The Social Security Act defines disability as the “inability to engage in any 25 substantial gainful activity by reason of any medically determinable physical or 26 mental impairment which can be expected to result in death or which has lasted or 27 can be expected to last for a continuous period of not less than twelve months.” 42 28 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant shall be determined to be 1 under a disability only if their impairments are of such severity that the claimant is 2 not only unable to do their previous work, but cannot, considering claimant’s age, 3 education, and work experiences, engage in any other substantial gainful work that 4 exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). The 5 Commissioner has established a five-step sequential evaluation process to 6 determine whether a person is disabled in the statute. See 20 C.F.R. §§ 7 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). 8 Step One: Is the claimant engaged in substantial gainful activities? 20 9 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). Substantial gainful activity is work 10 done for pay and requires compensation above the statutory minimum. Keyes v. 11 Sullivan, 894 F.2d 1053, 1057 (9th Cir. 1990). If the claimant is engaged in 12 substantial activity, benefits are denied. 20 C.F.R. § 404.1520(b), 416.920(b). If 13 the claimant is not, the ALJ proceeds to step two. 14 Step Two: Does the claimant have a medically-severe impairment or 15 combination of impairments? 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). A 16 severe impairment is one that lasted or must be expected to last for at least 12 17 months and must be proven through objective medical evidence. Id. §§ 404.1509, 18 416.909. If the claimant does not have a severe impairment or combination of 19 impairments, the disability claim is denied. Id. § 404.1520(a)(4)(ii), 20 416.920(a)(4)(ii). If the impairment is severe, the evaluation proceeds to the third 21 step. 22 Step Three: Does the claimant’s impairment meet or equal one of the listed 23 impairments acknowledged by the Commissioner to be so severe as to preclude 24 substantial gainful activity? 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If 25 the impairment meets or equals one of the listed impairments, the claimant is 26 conclusively presumed to be disabled. 20 C.F.R. §§ 404.1520(d), 416.920(d). If the 27 impairment is not one conclusively presumed to be disabling, the evaluation 28 proceeds to the fourth step. 1 Before considering to the fourth step, the ALJ must first determine the 2 claimant’s residual functional capacity. An individual’s residual functional 3 capacity is their ability to do physical and mental work activities on a sustained 4 basis despite limitations from their impairments. 20 C.F.R. §§ 404.1545(a)(1), 5 416.945(a)(1). The residual functional capacity is relevant to both the fourth and 6 fifth steps of the analysis. 7 Step Four: Does the impairment prevent the claimant from performing work 8 they have performed in the past? 20 C.F.R. §§ 404.1520(a)(4)(iv), 9 416.920(a)(4)(iv). If the claimant is able to perform their previous work, they are 10 not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f). If the claimant cannot perform 11 this work, the evaluation proceeds to the fifth and final step. 12 Step Five: Is the claimant able to perform other work in the national 13 economy in view of their age, education, and work experience? 20 C.F.R. §§ 14 404.1520(a)(4)(v), 416.920(a)(4)(v). The initial burden of proof rests upon the 15 claimant to establish a prima facie case of entitlement to disability benefits. Tackett 16 v. Apfel, 108 F.3d 1094, 1098 (9th Cir. 1999). This burden is met once a claimant 17 establishes that a physical or mental impairment prevents him from engaging in her 18 previous occupation. Id. At step five, the burden shifts to the Commissioner to 19 show that the claimant can perform other substantial gainful activity. Id. 20 III. Standard of Review 21 The Commissioner’s determination will be set aside only when the ALJ’s 22 findings are based on legal error or are not supported by substantial evidence in the 23 record as a whole. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992) (citing 24 42 U.S.C. § 405(g)). Substantial evidence is “more than a mere scintilla,” 25 Richardson v. Perales, 402 U.S. 389, 401 (1971), but “less than a preponderance,” 26 Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975). Substantial 27 evidence is “such relevant evidence as a reasonable mind might accept as adequate 28 to support a conclusion.” Richardson, 402 U.S. at 401. 1 A decision supported by substantial evidence will be set aside if the proper 2 legal standards were not applied in weighing the evidence and making the decision. 3 Brawner v. Secr’y of Health & Human Servs., 839 F.2d 432, 433 (9th Cir. 1988). 4 An ALJ is allowed “inconsequential” errors as long as they are immaterial to the 5 ultimate nondisability determination. Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 6 1050, 1055 (9th Cir. 2006). The Court must uphold the ALJ’s denial of benefits if 7 the evidence is susceptible to more than one rational interpretation, one of which 8 supports the decision of the administrative law judge. Batson v. Barnhart, 359 F.3d 9 1190, 1193 (9th Cir. 2004). It “must consider the entire record as a whole, 10 weighing both the evidence that supports and the evidence that detracts from the 11 Commissioner’s conclusion, and may not affirm simply by isolating a specific 12 quantum of supporting evidence.” Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 13 2017) (quotation omitted). “If the evidence can support either outcome, the court 14 may not substitute its judgment for that of the ALJ.” Matney, 981 F.2d at 1019. 15 For claims filed on or after March 27, 2017,3 like the present claim, new 16 regulations apply regarding the evaluation of medical evidence. Revisions to Rules 17 Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844 (Jan. 18, 2017). 18 The new regulations eliminate any semblance of a hierarchy of medical opinions 19 and state that the agency does not defer to any medical opinions. 20 C.F.R. 20 §§ 404.1520c(a), 416.920c. Specifically, the rules eliminate the agency’s “treating 21 source rule,” which gave special deference to certain opinions from treating 22 sources. 82 Fed. Reg. at 5853. In articulating the ALJ’s consideration of medical 23 opinions for persuasiveness, the ALJ considers the following factors: (1) 24 Supportability and (2) Consistency; (3) Relationship with the claimant, including 25

26 3 For claims filed prior to March 27, 2017, an ALJ was to give more weight to “those 27 physicians with the most significant clinical relationship with the plaintiff.” 28 Carmickle v. Comm’r, 533 F.3d 1155, 1164 (9th Cir. 2008). 1 (i) length of treatment relationship; (ii) frequency of examinations; (iii) purpose of 2 the treatment relationship; (iv) extend of the treatment relationship; (v) 3 examination relationship; (4) Specialization; and (5) Other factors, including 4 whether the medical source has familiarity with the other evidence or an 5 understanding of SSA’s disability program’s policies and evidentiary requirements. 6 20 C.F.R. §§ 404.1520c(b), 416.920c(b). The most important factors in evaluating 7 the persuasiveness of medical opinions are supportability and consistency. 20 8 C.F.R. §§ 404.1520c(a), 416.920c(a). 9 Supportability and consistency are further explained in the regulations: 10 (1) Supportability. The more relevant the objective medical evidence and supporting 11 explanations presented by a medical source are to support his or her medical 12 opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be. 13 (2) Consistency. 14 The more consistent a medical opinion(s) or prior administrative medical 15 finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior 16 administrative medical finding(s) will be. 17 20 C.F.R. §§ 404.1520c(c); 416.920c(c). 18 When a medical source provides multiple medical opinions, the ALJ must 19 articulate how it considered these opinions in a single analysis applying the above- 20 listed factors. 20 C.F.R. §§ 404.1520c(b)(1), 416.920c(b)(1). If equally persuasive 21 medical opinions about the same issue are both equally well-supported and 22 consistent with the record, but are not exactly the same, the ALJ must articulate 23 how it considered the other most persuasive factors in making its decision. 20 24 C.F.R. §§ 404.1520c(c)(3), 416.920c(c)(3). 25 IV. Statement of Facts 26 The facts have been presented in the administrative record, the ALJ’s 27 decision, and the briefs to this Court. Only the most relevant facts are summarized 28 1 herein. 2 At the time of the hearing, Plaintiff was 39 years old. He engaged in special 3 education classes and earned a high school education. As a child, he was physically 4 and sexually abused and has attempted suicide several times, beginning when he 5 was 16. 6 Plaintiff is morbidly obese. He weights over 400 lbs. He has back pain due to 7 bulging discs, but he cannot have surgery until he loses 200 lbs., which he has been 8 unable to do. Additionally, he has a hernia but cannot have surgery to repair it at 9 his current weight. He has swelling in his legs and cellulitis. He has obstructive 10 sleep apnea (OSA) along with hypoxemia and O2 levels into the 70s. Defendant 11 suffers from depression and PTSD. 12 Plaintiff has committed several felonies and has spent significant time in both 13 state and federal custody. 14 V. The ALJ’s Findings 15 The ALJ issued an opinion affirming denial of benefits. AR 16-26. At step 16 one, the ALJ found that Plaintiff has not engaged in substantial gainful activity 17 since May 20, 2019, the application date. AR 18. 18 At step two, the ALJ identified the following severe impairments: 19 degenerative disc disease, obesity, PTSD (posttraumatic stress disorder), 20 depression and substance abuse AR 18. 21 At step three, the ALJ found that Plaintiff did not have an impairment or 22 combination of impairments that meets or medically equals the severity of one of 23 the listed impairments. AR 19. Ultimately, the ALJ concluded that Plaintiff has a 24 residual function capacity (“RFC”) to perform:

25 to perform light work as defined in 20 CFR 416.967(b) except 26 occasionally lift 20 pounds, frequently lift 10 pounds; stand/walk for a total of about 6 hours and sit for about 6 hours in an 8 hour day; can 27 never climb ladders, ropes and scaffolds; can occasionally climb 28 1 ramps and stairs; can frequently balance; can occasionally stoop, kneel, crouch and crawl; must avoid concentrated exposure to 2 vibrations, unprotected heights and heavy machinery; can have 3 occasional interaction with coworkers and the general public; needs a 5 minute break every 2 hours and can tolerate occasional changes in a 4 routine work setting. 5 AR 20. 6 At step four, the ALJ found that Plaintiff had no past relevant work. AR 25. 7 At step five, the ALJ found that Plaintiff was not disabled and capable of 8 performing work that exists in significant numbers in the national economy, 9 including merchandise marker, routing clerk, and small products assembler. AR 10 26. 11 VI. Issues for Review 12 1. Whether the ALJ properly determined Plaintiff’s medically-determinable 13 impairment. 14 2. Whether the Appeals Council properly assessed new evidence. 15 3. Whether the ALJ properly assessed Plaintiff’s testimony. 16 4. Whether the ALJ properly assessed the medical opinions. 17 VII. Discussion 18 Plaintiff argues the ALJ erred finding the following impairments non-severe: 19 edema, OSA and hypoxemia. The Court agrees. There is evidence in the record to 20 support a finding that these medically determinable impairments are severe. Nor 21 was this error harmless because these impairments were not taken into account by 22 the ALJ when determining the RFC. But see Buck v. Berryhill, 869 F.3d 1040 (9th 23 Cir. 2017) (finding step two error harmless because all the impairments (severe and 24 non-severe) were taking into account when the ALJ determined the RFC). Here, 25 the ALJ failed to take into account Plaintiff’s severe impairments of edema, OSA 26 and hypoxemia when determining the RFC. As such, remand is necessary to allow 27 the ALJ to consider these particular impairments (edema, OSA and hypoxemia) in 28 determining Plaintiff’s RFC. This determination should include consideration of 1 whether Plaintiff can stand at least 6 hours a day or whether he will need to elevate 2 his legs throughout the day. 3 Additionally, the failure to find these impairments severe also impacted the 4 ALJ’s review of the Listings and particularly Listing 3.02(C)(3). Similarly, the 5 AC’s failure to consider the new evidence, which concerned the edema and 6 dermatitis, impacted its review of the ALJ’s decision and whether Listing 8.05 was 7 met. Remand is necessary for a determination of whether Plaintiff has met the 8 Listings identified above. 9 Having found that remand is warranted, the Court declines to address 10 Plaintiff’s remaining arguments concerning whether the ALJ properly evaluated 11 his testimony and properly evaluated the medical opinions. These arguments can 12 be addressed on remand. See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) 13 (“Because we remand the case to the ALJ for the reasons stated, we decline to 14 reach [plaintiff’s] alternative found for remand.”); Marcia v. Sullivan, 900 F.2d 15 172, 177 n.6 (9th Cir. 1990) (“Because we remand for reconsideration of step 16 three, we do not reach the other arguments raised.”). 17 // 18 // 19 // 20 // 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28 // 1 Accordingly, IT IS HEREBY ORDERED: 1. Plaintiff's Motion for Summary Judgment, ECF No. 9, is GRANTED. 2. _Defendant’s Motion for Summary Judgment, ECF No. 11, is DENIED. 3. The decision of the Commissioner is REVERSED and REMANDED for proceedings consistent with this Order. 4. Judgment shall be entered in favor of Plaintiff and against Defendant. IT IS SO ORDERED. The District Court Executive is hereby directed to 10| file this Order, provide copies to counsel, and close the file. 11 DATED this | 1th day of August 2022.

13 1 Sfauleyld Ses toar ee Stanley A. Bastian Chief United States District Judge 1 2 21 2 23 2 2 2 2 2 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JINCMENT: NENVING ERENDANT’S MOTION FOR CIIVMMARYV