Conley v. Kijakazi

• Court: District Court, E.D. Washington
• Decided: November 2, 2022
• Docket: 4:21-cv-05158
• Status: Unknown

Opinion

1 Nov 02, 2022 2 SEAN F. MCAVOY, CLERK 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON 6 7 8 JAMAAL C., No. 4:21-CV-05158-SAB 9 Plaintiff, 10 v. ORDER GRANTING 11 COMMISSIONER OF SOCIAL PLAINTIFF’S MOTION FOR 12 SECURITY ADMINISTRATION, SUMMARY JUDGMENT; 13 Defendant. DENYING DEFENDANT’S 14 MOTION FOR SUMMARY 15 JUDGMENT 16 17 Before the Court are Cross-Motions for Summary Judgment. ECF Nos. 11, 18 12. The motions were heard without oral argument. Plaintiff is represented by 19 Chad L. Hatfield; Defendant is represented by Jeffrey Staples and Timothy M. 20 Durkin. 21 Plaintiff brings this action seeking judicial review of the Commissioner of 22 Social Security’s final decision denying his application for child insurance benefits 23 under the Social Security Act, 42 U.S.C. §§ 1382. After reviewing the 24 administrative record and briefs filed by the parties, the Court is now fully 25 informed. For the reasons set forth below, the Court grants Plaintiff’s Motion for 26 Summary Judgment, ECF No. 11, and denies Defendant’s Motion for Summary 27 Judgment, ECF No. 12. 28 // 1 I. Jurisdiction 2 On April 21, 2015, Plaintiff filed an application for child’s insurance 3 benefits, alleging disability beginning December 12, 1976.1 On October 13, 2021, 4 Plaintiff appeared and testified by telephone before ALJ Jesse K. Shumway, who 5 presided from Spokane, Washington. He was represented by his attorney, Chad 6 Hatfield. The ALJ issued a decision on October 20, 2021, finding that Plaintiff was 7 not disabled. 8 Plaintiff filed a timely appeal with the United States District Court for the 9 Eastern District of Washington on January 13, 2021. ECF No. 1. The matter is 10 before this Court pursuant to 42 U.S.C. § 405(g). Plaintiff requested review by the 11 Appeals Council; the Appeals Council denied the request on February 25, 2021. 12 The Appeals Council’s denial of review makes the ALJ’s decision the “final 13 decision” of the Commissioner of Social Security, which this Court is permitted to 14 review. 42 U.S.C. § 405(g), 1383(c)(1)(3). 15 Plaintiff filed a timely appeal with the United States District Court for the 16 Eastern District of Washington on December 28, 2021. ECF No. 1. The matter is 17 before this Court pursuant to 42 U.S.C. § 405(g). 18 II. Five-Step Sequential Evaluation Process 19 The Social Security Act defines disability as the “inability to engage in any 20 substantial gainful activity by reason of any medically determinable physical or 21

22 1Plaintiff’s application was denied initially and on reconsideration. Plaintiff 23 appealed that decision. The ALJ issued a decision on May 14, 2018, finding 24 Plaintiff was not disabled. Plaintiff appealed that decision. On December 9, 2019, 25 Magistrate Judge Dimke granted the parties’ Stipulated Motion to Remand and 26 ordered the ALJ to “exhibit and proffer the medical evidence in this case, including 27 Exhibit 4F from Plaintiff’s prior application.” See Jamaal C. v. Commissioner of 28 Soc. Sec., 4:19-cv-05100-MKD, ECF No. 20. 1 mental impairment which can be expected to result in death or which has lasted or 2 can be expected to last for a continuous period of not less than twelve months.” 42 3 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant shall be determined to be 4 under a disability only if their impairments are of such severity that the claimant is 5 not only unable to do their previous work, but cannot, considering claimant’s age, 6 education, and work experiences, engage in any other substantial gainful work that 7 exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). The 8 Commissioner has established a five-step sequential evaluation process to 9 determine whether a person is disabled in the statute. See 20 C.F.R. §§ 10 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). 11 Step One: Is the claimant engaged in substantial gainful activities? 20 12 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). Substantial gainful activity is work 13 done for pay and requires compensation above the statutory minimum. Keyes v. 14 Sullivan, 894 F.2d 1053, 1057 (9th Cir. 1990). If the claimant is engaged in 15 substantial activity, benefits are denied. 20 C.F.R. § 404.1520(b), 416.920(b). If 16 the claimant is not, the ALJ proceeds to step two. 17 Step Two: Does the claimant have a medically-severe impairment or 18 combination of impairments? 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). A 19 severe impairment is one that lasted or must be expected to last for at least 12 20 months and must be proven through objective medical evidence. Id. §§ 404.1509, 21 416.909. If the claimant does not have a severe impairment or combination of 22 impairments, the disability claim is denied. Id. § 404.1520(a)(4)(ii), 23 416.920(a)(4)(ii). If the impairment is severe, the evaluation proceeds to the third 24 step. 25 Step Three: Does the claimant’s impairment meet or equal one of the listed 26 impairments acknowledged by the Commissioner to be so severe as to preclude 27 substantial gainful activity? 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If 28 the impairment meets or equals one of the listed impairments, the claimant is 1 conclusively presumed to be disabled. 20 C.F.R. §§ 404.1520(d), 416.920(d). If the 2 impairment is not one conclusively presumed to be disabling, the evaluation 3 proceeds to the fourth step. 4 Before considering to the fourth step, the ALJ must first determine the 5 claimant’s residual functional capacity. An individual’s residual functional 6 capacity is their ability to do physical and mental work activities on a sustained 7 basis despite limitations from their impairments. 20 C.F.R. §§ 404.1545(a)(1), 8 416.945(a)(1). The residual functional capacity is relevant to both the fourth and 9 fifth steps of the analysis. 10 Step Four: Does the impairment prevent the claimant from performing work 11 they have performed in the past? 20 C.F.R. §§ 404.1520(a)(4)(iv), 12 416.920(a)(4)(iv). If the claimant is able to perform their previous work, they are 13 not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f). If the claimant cannot perform 14 this work, the evaluation proceeds to the fifth and final step. 15 Step Five: Is the claimant able to perform other work in the national 16 economy in view of their age, education, and work experience? 20 C.F.R. §§ 17 404.1520(a)(4)(v), 416.920(a)(4)(v). The initial burden of proof rests upon the 18 claimant to establish a prima facie case of entitlement to disability benefits. Tackett 19 v. Apfel, 108 F.3d 1094, 1098 (9th Cir. 1999). This burden is met once a claimant 20 establishes that a physical or mental impairment prevents him from engaging in her 21 previous occupation. Id. At step five, the burden shifts to the Commissioner to 22 show that the claimant can perform other substantial gainful activity. Id. 23 III. Standard of Review 24 The Commissioner’s determination will be set aside only when the ALJ’s 25 findings are based on legal error or are not supported by substantial evidence in the 26 record as a whole. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992) (citing 27 42 U.S.C. § 405(g)). Substantial evidence is “more than a mere scintilla,” 28 Richardson v. Perales, 402 U.S. 389, 401 (1971), but “less than a preponderance,” 1 Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975). Substantial 2 evidence is “such relevant evidence as a reasonable mind might accept as adequate 3 to support a conclusion.” Richardson, 402 U.S. at 401. 4 A decision supported by substantial evidence will be set aside if the proper 5 legal standards were not applied in weighing the evidence and making the decision. 6 Brawner v. Secr’y of Health & Human Servs., 839 F.2d 432, 433 (9th Cir. 1988). 7 An ALJ is allowed “inconsequential” errors as long as they are immaterial to the 8 ultimate nondisability determination. Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 9 1050, 1055 (9th Cir. 2006). The Court must uphold the ALJ’s denial of benefits if 10 the evidence is susceptible to more than one rational interpretation, one of which 11 supports the decision of the administrative law judge. Batson v. Barnhart, 359 F.3d 12 1190, 1193 (9th Cir. 2004). It “must consider the entire record as a whole, 13 weighing both the evidence that supports and the evidence that detracts from the 14 Commissioner’s conclusion, and may not affirm simply by isolating a specific 15 quantum of supporting evidence.” Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 16 2017) (quotation omitted). “If the evidence can support either outcome, the court 17 may not substitute its judgment for that of the ALJ.” Matney, 981 F.2d at 1019. 18 IV. Statement of Facts 19 The facts have been presented in the administrative record, the ALJ’s 20 decision, and the briefs to this Court. Only the most relevant facts are summarized 21 herein. 22 Plaintiff was diagnosed with ADD when he was around 8 years old and he 23 was prescribed Ritalin. He had difficulty adjusting to Ritalin. At times his behavior 24 at home and school improved when he was on medication, but other times he 25 lacked energy. Plaintiff complained about having headaches on and off since he 26 started taking Ritalin. He believed that Ritalin made him depressed. 27 Plaintiff received special education assistance throughout his school years 28 because of behavioral problems and learning disabilities. He left school after the 1 ninth grade. Plaintiff requested records from the Pasco and Kennewick School 2 Districts where he received Special Education instruction. Neither school district 3 retains records after so many years have passed. Plaintiff’s primary care provider 4 prior to age 22, Dr. Branson, passed away and no records were retained from that 5 practice. 6 Plaintiff tried to earn his GED but was unsuccessful and gave up trying. He 7 does not have a driver’s license because he cannot pass the written test. Plaintiff 8 has three children, but eventually CPS placed them with his mother. Plaintiff had 9 numerous unsuccessful work attempts. They usually only lasted a few weeks. At 10 the hearing, he testified that when he was working, he had problems with 11 understanding and following directions and had difficulty with multi-step 12 instructions. He would get frustrated because of his struggles and quit. 13 He worked at Walmart for a few weeks. He testified that he tried to do a lot 14 of different tasks, but he was unable to complete them in a timely manner. 15 He testified that he has a hard time being around other people. He likes to be 16 my himself. He explained that he never calls people or returns calls because he 17 hates dealing with people. 18 In 2009, Plaintiff was found to be disabled since February 17, 2006 by an 19 ALJ. The ALJ found that Plaintiff had the following severe impairments: attention 20 deficit hyperactivity disorder, a dysthymic disorder and polysubstance abuse. The 21 ALJ found that Plaintiff’s ability to respond appropriately to supervision, co- 22 workers, and usual work situations and to deal with changes in a routine work 23 setting were substantially impaired. Because these limitations narrowed the range 24 of work, Plaintiff was found disabled. The ALJ specifically noted that Plaintiff’s 25 substance use disorder was not a contributing factor material to the determination 26 of disability. 27 V. The ALJ’s Findings 28 The ALJ issued an opinion affirming denial of child’s insurance benefits. 1 AR 669-676. The ALJ noted that because child’s insurance benefits do not become 2 payable until the attainment of age 18, the relevant period is from Plaintiff’s 18th 3 birthday on December 12, 1994 to the date he attained age 22 on December 12, 4 1998. See 20 C.F.R. 404.350(a)(5). 5 At step one, the ALJ found that Plaintiff has not engaged in substantial 6 gainful activity during the relevant time period. AR 671. 7 At step two, the ALJ identified the following medically determinable 8 impairments: ADHD; mood disorder. But it found Plaintiff did not have an 9 impairment or combination of impairments that significantly limited (or was 10 expected to significantly limit) the ability to perform basic work-related activities 11 for 12 consecutive months. AR 672. In the alternative, the ALJ noted that even if it 12 were to find Plaintiff’s ADHD and mood disorder to be severe and adopt the 13 residual functional capacity outlined in hypothetical two at the hearing, Plaintiff 14 would still have been able to perform jobs existing in significant numbers in the 15 national economy, including industrial cleaner, kitchen helper, and laundry worker 16 II. The ALJ found that Plaintiff was not under a disability at any time before 17 December 11, 1998, the date he attained age 22. 18 VI. Issues for Review 19 1. Whether the ALJ properly evaluate Plaintiff’s impairments at Step Two. 20 3. Whether the ALJ properly concluded that the record does not support a 21 finding that Plaintiff’s impairments existed beginning December 11, 1994 and 22 December 11, 1998. 23 VII. Discussion 24 1. Step Two Analysis 25 The ALJ found that Plaintiff did not have any medically severe impairment 26 or combination of impairments. The Step Two analysis is governed by the severity 27 regulation that provides:

28 1 If you do not have any impairment or combination of impairments which significantly limits your physical or mental ability to do basic 2 work activities, we will find that you do not have a severe impairment 3 and are, therefore, not disabled. 4 §§ 404.1520(c), 416.920(c). The ability to do basic work activities is defined as “the abilities and 5 aptitudes necessary to do most jobs. §§ 404.1521(b), 416.921(b). Such abilities and 6 aptitudes include: (1) physical functions such as walking, standing, sitting, lifting, 7 pushing, pulling, reaching, carrying, or handling; (2) capacities for seeing, hearing, 8 and speaking; (3) understanding, carrying out, and remembering simple 9 instructions; (4) use of judgment; (5) responding appropriately to supervision, co- 10 workers, and usual work situations; and (6) dealing with changes in a routine work 11 setting. Id. 12 If the impairments are not severe enough to significantly limit the claimant's 13 ability to perform most jobs, by definition the impairment does not prevent the 14 claimant from engaging in any substantial gainful activity. Bowen v. Yuckert, 482 15 U.S. 137, 146 (1987). 16 Here, while the record contains medical records from 1991 through 1993, as 17 well as psychological evaluations from 2004-2006, there is little documentation for 18 the period in question, December 1994 through December 1998. 19 Education records from January 14, 1994 through March 9, 1994 were 20 obtained and considered by the ALJ. These records provided objective and 21 subjective evaluations. Objective testing showed that Plaintiff had difficulty with 22 visual alertness, sequencing skills and concrete and abstract perceptual motor 23 skills. It was noted that Plaintiff would have difficulty using perception, 24 anticipation and organization to work from a part to a whole. He would also have 25 difficulty working towards an unknown goal. The Report referenced Plaintiff’s 26 long history of disruptive behaviors. 27 At that time, Plaintiff was having limited success in the Special Education 28 1 Program and was demonstrating considerable difficulty in some of his 2 mainstreamed course. Plaintiff would engage in avoidance behaviors. He required 3 auditory prompts with all visual information presentation although he was not 4 responsive to in-classroom monitoring and accuracy checks. Plaintiff had difficulty 5 staying on task and avoided prompts. He was often noncompliant when asked to 6 perform a task. 7 It was noted that Plaintiff had attendance problems and difficulty following 8 rules, which impacted negatively on his academic growth. Plaintiff was not 9 responsive to direct instruction in work/learning situations, and he did not accept 10 redirection. He had minimal commitment to success and used avoidance as a 11 problem-solving technique, although for those classes for which he had an interest 12 he had some success. Plaintiff had difficulty adjusting behavior to meet different 13 expectations, did not socialize during class time, and was reluctant to engage in 14 cooperative work assignments. 15 A Burke’s Behavior Rating Scale was conducted, and it revealed the 16 following: Very Significant Areas: excessive withdrawal, poor intellectuality, poor 17 anger control, excessive resistance and poor social conformity. 18 Significant Areas: poor physical strength, poor academics, poor attention, 19 poor reality contact, poor impulse control, poor sense of identity. 20 21 It was noted that these findings were consistent with the observations in the 22 regular and special education classroom, except for the poor physical strength, 23 because at that time Plaintiff perceived himself to be strong and athletic. Notably, 24 Plaintiff had difficulty following directions when he tried out for the high school 25 basketball team. 26 The Report concluded that Plaintiff’s academic program should focus on 27 behavior interventions, organization skills and vocational/career path exploration. 28 In December 1996, Plaintiff was evaluated by the Division of Vocational 1 Rehabilitation, Department of Social and Health Services (DVR). In determining 2 that Plaintiff was eligible for services, DVR noted the following:

3 Jamaal has difficulty with taking directions from others. He will not 4 concentrate on task at hand to completion. His impulse control has caused him to lose employment. He has difficulty with attention to 5 task and decision-making problems resulting him losing his last 6 employment. He will not work well in employment that requires him to use math calculations. 7 The DVR records indicate that in March 1997 Plaintiff wanted to obtain his 8 GED. In June 1997, it appears Plaintiff was still interested in obtaining 9 employment, although he failed to cooperate early in the rehab process. By 10 September 1997, DVR staff concluded that Plaintiff was merely playing games and 11 was not serious about obtaining work. Plaintiff failed to contact staff and failed to 12 follow through with employment opportunities. In October 1997, Plaintiff 13 requested part-time work. A review of his vocation potential showed that Plaintiff 14 was a very slow worker and was only able to perform small routine tasks. He 15 missed a December 1997 appointment because he was ill. In January 1998, DVR 16 staff concluded that Plaintiff was refusing to cooperate with services to assist him 17 in finding employment. DVR closed his file in March 1998 because Plaintiff failed 18 to contact them. 19 Here, the ALJ erred in failing to find that Plaintiff’s ADD and mood 20 disorder were not medically severe impairments. The January 1994 evaluation 21 shows that Plaintiff’s ADD and mood disorder significantly limited Plaintiff’s 22 ability to understand, carry out, and remember simple instructions, his use of 23 judgment, his ability to respond appropriately to supervision, co-workers, and 24 usual work situations; and dealing with changes in a routine work setting. As such, 25 these impairments meet the statutory definition of severe. 26 In finding that Plaintiff’s ADD and mood disorder were not severe, the ALJ 27 cherry-picked the 1994 report and concluded that Plaintiff’s problems in school 28 1 were because he was not taking his medications, and because Plaintiff chose to be 2 non-compliant at school. The ALJ focused on the last treatment record from March 3 1993 but failed to account for the many times that Plaintiff and his mother told the 4 doctor that the Ritalin was making his sleepy and slow. The records from Dr. 5 Henriques also indicate that there were times, even when all his meds, that Plaintiff 6 was struggling in school. The ALJ erred in finding that Plaintiff’s ADD and mood 7 disorder were not severe. 8 2. Determination of Onset Date 9 SSR-18-1p2 provides guidance to determining the onset date. It instructs that 10 the date that the claimant first meets the statutory definition of disability must be 11 supported by the medical and other evidence and be consistent with the nature of 12 the impairment(s). The relevant evidence considered includes: (1) the nature of the 13 claimant’s impairment; (2) the severity of the signs, symptoms, and laboratory 14 findings; (3) the longitudinal history and treatment course (or lack thereof); (4) the 15 length of the impairment’s exacerbations and remissions, if applicable; and (5) any 16 statement by the claimant about new or worsening signs, symptoms, and laboratory 17 findings. 18 According to SSR18-1p, the date that the claimant first met the statutory 19 definition of disability may predate their earliest recorded medical examination or 20 the date of their earliest medical records, but SSA will not consider whether the 21 claimant first met the statutory definition of disability on a date that is beyond the 22 period under consideration. Evidence from other non-medical sources such as the 23

24 2SSR83-20 was rescinded and replaced October 2, 2018 by SSR 18-1p and SSR 25 18-2p. SSR 18-1p was to be used on all claims that were pending on and after the 26 applicable date. The Appeals Council issued its opinion on February 27, 2019. 27 Because Plaintiff’s application was pending on October 2, 2018, SSR 18-1p 28 applies. 1 claimant’s family, friends, or former employers, may be considered if additional 2 medical evidence cannot be obtained or it does not exist (e.g., the evidence was 3 never created or was destroyed), and the date that the claimant first met the 4 statutory definition of disability cannot be reasonably inferred based on the 5 medical evidence in the file. 6 Specifically, SSR 18-1p states:

7 At the hearing level of our administrative review process, if the ALJ 8 needs to infer the date that the claimant first met the statutory definition of disability, he or she may call on the services of an ME by 9 soliciting testimony or requesting responses to written interrogatories 10 (i.e., written questions to be answered under oath or penalty of perjury). The decision to call on the services of an ME is always at the 11 ALJ’s discretion. Neither the claimant nor his or her representative 12 can require an ALJ to call on the services of an ME to assist in inferring the date that the claimant first met the statutory definition of 13 disability. 14 SSR 85-15 states that the basic mental demands of competitive, 15 remunerative, unskilled work include the abilities (on a sustained basis) to 16 understand, carry out, and remember simple instructions; to respond appropriately 17 to supervision, coworkers, and usual work situations; and to deal with changes in a 18 routine work setting. A substantial loss of ability to meet any of these basic work- 19 related activities would severely limit the potential occupational base. This, in turn, 20 would justify a finding of disability because even favorable age, education, or 21 work experience will not offset such a severely limited occupational base. 22 The ALJ concluded that Plaintiff was capable of working during the relevant 23 period but was not interested in doing so. This conclusion is not supported by the 24 record. Again, the ALJ cherry-picked the record to conclude that Plaintiff was 25 capable of working. On the contrary, the 1994 evaluation conducted less than a 26 year before the relevant time period supports the conclusion that Plaintiff simply 27 did not have the skills or abilities to sustain full-time work. Consistent throughout 28 1 the record is that Plaintiff worked at a much slower pace than necessary to sustain 2 full-time work. He had extreme difficulty focusing and completing tasks. He also 3 had difficulty taking direction from other and struggled with impulse control and 4 anger management. He used avoidance strategies which made completing tasks 5 difficult. Rather, the record is clear that the same disabilities found by a different 6 ALJ to be present in 2006 were present in 1994-1998. 7 3. Evaluation of Plaintiff’s Testimony 8 The ALJ failed to provide clear and convincing reasons to reject Plaintiff’s 9 testimony that he dropped out of school and could not work because he had trouble 10 following instructions and performed his work too slow for the same reasons as 11 identified above. The ALJ failed to give proper credit to the 1994 evaluation, 12 which supports Plaintiff’s testimony. 13 VII. Remand for Immediate Award of Benefits 14 Here, the ALJ erred in failing to infer from the records that Plaintiff was 15 disabled from December 11, 1994 to December 11, 1998. These records show that 16 Plaintiff was not able to sustain full-time work due to his ADD and mood disorder. 17 As such, a remand for the calculation and award of benefits is both appropriate and 18 required. 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. 11, is GRANTED. 2. Defendant’s Motion for Summary Judgment, ECF No. 12, is 5|| DENIED. 3. The decision of the Commissioner is reversed and remanded for an immediate award of benefits. 8 4. Judgment shall be entered in favor of Plaintiff and against Defendant. 9 IT IS SO ORDERED. The District Court Executive is hereby directed to file this Order, provide copies to counsel, and close the file. 11 DATED this 2nd day of November 2022. 12 13 14 15 byt Secta Stanley A. Bastian Chief United States District Judge

19 20 21 22 23 24 25 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY TIM CNIONT. NENVING NOECENN ANTEC MATION GAD CTININAADYV