Conner v. Kijakazi

• Court: District Court, E.D. Washington
• Decided: September 13, 2022
• Docket: 2:20-cv-00297
• Status: Unknown

Opinion

EASTERN DISTRICT OF WASHINGTON 1 Sep 13, 2022 2 SEAN F. MCAVOY, CLERK 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 ELIZABETH C., No. 2:20-CV-00297-JAG 8

9 Plaintiff, ORDER GRANTING 10 PLAINTIFF’S MOTION v. FOR SUMMARY JUDGMENT 11 AND REMANDING 12 KILOLO KIJAKAZI, FOR ADDITIONAL ACTING COMMISSIONER OF PROCEEDINGS 13 SOCIAL SECURITY,1 14 Defendant. 15

16 BEFORE THE COURT are cross-motions for summary judgment. ECF 17 No. 18, 19. Attorney Jeffrey Schwab represents Elizabeth C. (Plaintiff); Special 18 Assistant United States Attorney Katherine B. Watson represents the 19 Commissioner of Social Security (Defendant). The parties have consented to 20 proceed before a magistrate judge. ECF No. 6. After reviewing the administrative 21 record and the briefs filed by the parties, the Court GRANTS Plaintiff’s Motion 22 for Summary Judgment; DENIES Defendant’s Motion for Summary Judgment; 23 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 and REMANDS the matter to the Commissioner for additional proceedings 2 pursuant to 42 U.S.C. § 405(g). 3 I. JURISDICTION 4 Plaintiff filed an application for Disability Insurance Benefits on September 5 7, 2016 alleging disability since November 1, 2011, due to PTSD, migraines, 6 myasthenia gravis, left knee dislocation, fatigue, memory problems, anxiety, and 7 weak immune system. Tr. 21, 205-06, 235. At the hearing, Plaintiff amended her 8 alleged onset date to May 1, 2015. Tr. 21, 44. The application was denied initially 9 and upon reconsideration. Tr. 89-91, 93-95. Administrative Law Judge (ALJ) 10 Virginia M. Robinson held a hearing on July 24, 2019, Tr. 21, 40-64, and issued an 11 unfavorable decision on August 5, 2019. Tr. 18-39. Plaintiff requested review of 12 the ALJ’s decision by the Appeals Council. Tr. 202-204. The Appeals Council 13 denied the request for review on June 25, 2020. Tr. 1-6. The ALJ’s August 5, 2019 14 decision became the final decision of the Commissioner, which is appealable to the 15 district court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action for judicial 16 review on August 20, 2020. ECF No. 1. 17 II. STATEMENT OF FACTS 18 Plaintiff was born in 1984 and was 31 years old on the amended alleged 19 onset date and 33 years old on the date last insured. Tr. 31. Plaintiff completed two 20 years of college and has worked as a medical assistant. Tr. 309. 21 III. STANDARD OF REVIEW 22 The ALJ is responsible for determining credibility, resolving conflicts in 23 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 24 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 25 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 26 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 27 only if it is not supported by substantial evidence or if it is based on legal error. 28 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 1 defined as being more than a mere scintilla, but less than a preponderance. Id. at 2 1098. Put another way, substantial evidence is such relevant evidence as a 3 reasonable mind might accept as adequate to support a conclusion. Richardson v. 4 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one 5 rational interpretation, the Court may not substitute its judgment for that of the 6 ALJ. Tackett, 180 F.3d at 1098; Morgan v. Commissioner of Social Sec. Admin., 7 169 F.3d 595, 599 (9th Cir. 1999). If substantial evidence supports the 8 administrative findings, or if conflicting evidence supports a finding of either 9 disability or non-disability, the ALJ’s determination is conclusive. Sprague v. 10 Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision 11 supported by substantial evidence will be set aside if the proper legal standards 12 were not applied in weighing the evidence and making the decision. Brawner v. 13 Sec’y of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 14 IV. SEQUENTIAL EVALUATION PROCESS 15 The Commissioner has established a five-step sequential evaluation process 16 for determining whether a person is disabled. 20 C.F.R. § 404.1520(a); Bowen v. 17 Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through four, the claimant 18 bears the burden of establishing a prima facie case of disability. Tackett, 180 F.3d 19 at 1098-1099. This burden is met once a claimant establishes that a physical or 20 mental impairment prevents the claimant from engaging in past relevant work. 20 21 C.F.R. § 404.1520(a)(4). If a claimant cannot perform past relevant work, the ALJ 22 proceeds to step five, and the burden shifts to the Commissioner to show (1) the 23 claimant can make an adjustment to other work; and (2) the claimant can perform 24 other work that exists in significant numbers in the national economy. Beltran v. 25 Astrue, 700 F.3d 386, 389 (9th Cir. 2012). If a claimant cannot make an adjustment 26 to other work in the national economy, the claimant will be found disabled. 20 27 C.F.R. § 404.1520(a)(4)(v). 28 1 V. ADMINISTRATIVE FINDINGS 2 On August 5, 2019, the ALJ issued a decision finding Plaintiff was not 3 disabled, as defined in the Social Security Act, through her date last insured of 4 December 31, 2017. Tr. 18-39. 5 At step one, the ALJ found Plaintiff last met the insured status requirements 6 of the Social Security Act on December 31, 2017, and that she had not engaged in 7 substantial gainful activity during the period from her amended onset date, May 1, 8 2015, through her date last insured. Tr. 23. 9 At step two, the ALJ determined Plaintiff had the following severe 10 impairments: migraine headaches, carpal tunnel syndrome (CTS), obesity, and 11 depression. Tr. 24. 12 At step three, the ALJ found Plaintiff did not have an impairment or 13 combination of impairments that met or medically equaled the severity of one of 14 the listed impairments. Tr. 24-25. 15 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and found 16 through the date last insured, Plaintiff could perform a full range of work at all 17 exertional levels, but with the following nonexertional limitations:

18 she should avoid concentrated exposure to extreme cold and heat; 19 pulmonary irritants such as fumes, odors, dusts, and gases; and 20 workplace hazards such as working with dangerous machinery and working at unprotected heights. She can frequently handle and finger. 21 She can have superficial interaction with coworkers and occasional, 22 superficial interaction with the public. She must have a restroom available at her worksite. 23

24 Tr. 25. 25 At step four, the ALJ found through the date last insured Plaintiff was 26 unable to perform any past relevant work. Tr. 31. 27 28 1 At step five the ALJ found that, considering Plaintiff’s age, education, work 2 experience and residual functional capacity, there were jobs that existed in 3 significant numbers in the national economy that Plaintiff could perform, 4 specifically identifying the representative occupations of laundry laborer, machine 5 feeder, and sand blaster. Tr. 32. 6 The ALJ thus concluded Plaintiff was not under a disability within the 7 meaning of the Social Security Act at any time from the alleged onset date, May 1, 8 2015, through December 31, 2017, the date last insured. Tr. 33. 9 VI. ISSUES 10 Plaintiff seeks judicial review of the Commissioner’s final decision denying 11 her disability insurance benefits under Title II of the Social Security Act. The 12 question presented is whether substantial evidence supports the ALJ’s decision 13 denying benefits and, if so, whether that decision is based on proper legal 14 standards. 15 Plaintiff raises the following issues for review: (1) whether the ALJ properly 16 evaluated the medical opinion evidence; (2) whether the ALJ conducted a proper 17 step-two analysis; (3) whether the ALJ conducted a proper step-three analysis; (4) 18 whether the ALJ properly evaluated Plaintiff’s subjective complaints; and (5) 19 whether the ALJ conducted a proper step-five analysis. ECF No. 18 at 2. 20 VII. DISCUSSION 21 A. Opinion Evidence. 22 Plaintiff argues the ALJ improperly rejected the opinion of Anna S. Garcia, 23 LMHC. ECF No. 18 at 10-11. 24 An ALJ may discount the opinion of an “other source,” such as a therapist if 25 they provide “reasons germane to each witness for doing so.” Molina v. Astrue, 26 674 F.3d 1104, 1111 (9th Cir. 2012). On November 15, 2016, Plaintiff’s mental 27 health counselor Ms. Garcia provided a letter on Plaintiff’s behalf. Tr. 452. Ms. 28 Garica reported she met with Plaintiff once a week at Plaintiff’s home and that 1 Plaintiff’s diagnoses included PTSD, major depressive disorder, and anxiety. Id. 2 She reported Plaintiff tends to isolate, has to challenge herself to engage with 3 others and often forgets things. Id. She reported while medication reduced the 4 severity of Plaintiff’s depressive symptoms, “most days the physical weakness and 5 lethargy prevail” and that Plaintiff “struggles to motivate herself throughout the 6 day and requires prompting to cook for and feed herself and even complete daily 7 hygiene.” Id. She reported they were working on Plaintiff’s “past trauma, 8 addressing self-esteem and anxiety symptoms with limited success” and that while 9 Plaintiff was making progress, “she still struggles to be around males and public 10 situations lead to extreme anxiety and often panic attacks.” Id. She opined Plaintiff 11 “will likely continue to have difficulties obtaining and maintaining employment as 12 she has extreme difficulty coping with her day to day obligations, remembering 13 and/or having the motivation to complete the tasks that need to be completed each 14 day, such as her own self-care and maintenance of her household.” Id. She further 15 opined, “during the last 10 months and given lack of progress and combination of 16 her mental and physical limitations, [Plaintiff] has not stabilized long enough to 17 allow for the additional stressors that employment would present.” Id. 18 The ALJ gave Ms. Garcia’s statement little weight because it “fails to 19 identify any vocationally specific mental limitations and is essentially a statement 20 that the claimant cannot work” and “[a] statement that a claimant ‘cannot work’ is 21 not a medical opinion, but a legal conclusion that is reserved to the 22 Commissioner.” Tr. 31. Plaintiff argues this is not a germane reason to reject Ms. 23 Garcia’s statement, as Ms. Garcia assessed specific limitations in Plaintiff’s ability 24 to adapt or manage herself including handling day to day obligations and 25 interacting with others. ECF No. 18 at 11. Defendant argues the ALJ reasonably 26 discounted the statement of Ms. Garcia. ECF No. 19 at 17-18. 27 The Court finds the ALJ erred by failing to provide germane reasons to 28 reject Ms. Garcia’s opinion. In order to understand a person’s functional 1 limitations an ALJ must consider evidence including observations, opinions, or 2 conclusions by mental health providers on such matters as the individuals ability to 3 cope with stress, the ability to relate to other people, and the ability to function in a 4 group or work situation; and the Social Security regulations state that a limited 5 ability to carry out certain mental activities, including limitations in understanding, 6 remembering, and responding appropriately to supervision and coworkers, may 7 reduce a person’s ability to work, as such mental activities are critical to work 8 performance. 20 C.F.R. § 404.1545(c); SSR 85-16. The Social Security regulations 9 also “give more weight to opinions that are explained than to those that are not.” 10 Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2011). Here, Ms. Garcia 11 explained due to mental health symptoms Plaintiff had difficulty with memory, 12 concentration, multiple activities of daily living including preparing meals and 13 performing daily hygiene, and difficulty with social functioning, including 14 difficulty interacting with men and the public, which are all mental limitations 15 relevant to her ability to work. Tr. 452; see SSR 85-16. The ALJ did not provide 16 analysis or discussion of Ms. Garcia’s opinion and the ALJ’s summary conclusion 17 that Ms. Garcia failed to identify any vocationally specific mental limitations is not 18 supported by substantial evidence. 19 Furthermore, the ALJ did not provide germane reasons for giving Ms. 20 Garcia’s less weight; the ALJ dismissed her statement without analysis, concluding that it was “essentially a statement that the claimant cannot work, and therefore an 21 ultimate issue of disability reserved to the Commissioner.” Tr. 31. Defendant is 22 correct that whether or not a claimant is disabled is an issue reserved for the ALJ 23 and not due any special significance. ECF No. 19 at 17; see 20 C.F.R. § 24 404.1527(d). However, Ms. Garcia’s statement that Plaintiff had not “stabilized 25 long enough to allow for the additional stressors that employment would present” 26 is not a conclusory statement that she is disabled. See Hill v. Astrue, 698 F.3rd 27 1153, 1160 (9th Circuit. 2012) (a physician’s statement that the client would be 28 1 “unlikely” to work full time was not a conclusory statement like those described in 2 20 C.F.R. §§ 404.1527(d), 416.927(d)). Further, she explained and supported her 3 opinion. Ms. Garcia’s full statement provides information about Plaintiff’s 4 functioning and mental limitations. 5 Accordingly, here the ALJ failed to offer reasons, supported by substantial 6 evidence, for discounting Ms. Garcia’s opinion. Upon remand, the ALJ is 7 instructed to reconsider Ms. Garcia’s opinion with the assistance of psychological 8 medical expert testimony, and to reevaluate all medical and other opinion evidence 9 in completing the five-step process. 10 B. Step Two and Step Three Findings. 11 Plaintiff contends the ALJ erred by failing to consider her impairments of 12 anxiety, PTSD, and bipolar disorder at step two, ECF No. 18 at 13-15, failing to 13 mention listings 12.06 and 12.15 at step three, failing to properly consider listing 14 11.02, and failing to find Plaintiff disabled at step three. ECF No. 18 at 11-13. 15 Defendant argues the ALJ reasonably evaluated the severity of Plaintiff’s mental 16 impairments and reasonably concluded Plaintiff’s impairments did not meet or 17 equal a listing. ECF No. 19 at 3, 12. 18 Having determined a remand is necessary to readdress the opinion evidence 19 the Court declines to reach the step two and step three issues. See Hiler v. Astrue, 20 687 F.3d 1208, 1212 (9th Cir. 2012) (“Because we remand the case to the ALJ for 21 the reasons stated, we decline to reach [plaintiff’s] alternative ground for 22 remand.”). 23 The ALJ is instructed on remand to reconsider the full medical record and 24 revise or make additional step two and step three findings if warranted. 25 C. Plaintiff’s Subjective Statements. 26 Plaintiff contends the ALJ erred by improperly rejecting her subjective 27 complaints. ECF No. 18 at 15-20. It is the province of the ALJ to make 28 determinations regarding a claimant’s subjective statements. Andrews, 53 F.3d at 1 1039. However, the ALJ’s findings must be supported by specific, cogent reasons. 2 Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Once the claimant 3 produces medical evidence of an underlying medical impairment, the ALJ may not 4 discredit testimony as to the severity of an impairment merely because it is 5 unsupported by medical evidence. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 6 1998). Absent affirmative evidence of malingering, the ALJ’s reasons for rejecting 7 the claimant’s testimony must be “specific, clear and convincing.” Smolen v. 8 Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Lester v. Chater, 81 F.3d 821, 834 9 (9th Cir. 1996). “General findings are insufficient: rather the ALJ must identify 10 what testimony is not credible and what evidence undermines the claimant’s 11 complaints.” Lester, 81 F.3d at 834; Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 12 1993). The ALJ concluded Plaintiff’s medically determinable impairments could 13 reasonably be expected to cause the alleged symptoms; however, Plaintiff’s 14 statements concerning the intensity, persistence and limiting effects of those 15 symptoms were not entirely consistent with the medical evidence and other 16 evidence in the record. Tr. 26. 17 The ALJ’s evaluation of Plaintiff’s symptom claims and the resulting 18 limitations largely relies on the ALJ’s assessment of the opinion evidence. Having 19 determined a remand is necessary to readdress the opinion evidence, any 20 reevaluation must necessarily entail a reassessment of Plaintiff’s subjective 21 symptom claims. Thus, the Court need not reach this issue and on remand the ALJ 22 must also carefully reevaluate Plaintiff’s symptom claims in the context of the 23 entire record. See Hiler, 687 F.3d at 1212 (“Because we remand the case to the 24 ALJ for the reasons stated, we decline to reach [plaintiff’s] alternative ground for 25 remand.”). 26 D. Step Five Findings. 27 Plaintiff contends the ALJ erred by posing an incomplete hypothetical to the 28 vocational expert. ECF No. 18 at 20. As the case is being remanded for the ALJ to 1 properly address the medical opinion evidence, the ALJ is instructed to make 2 findings on all of the steps of the sequential evaluation process, including step five, 3 with the assistance of vocational expert testimony. 4 VII. CONCLUSION 5 Plaintiff argues the decision should be reversed and remanded for the 6 payment of benefits. The Court has the discretion to remand the case for additional 7 evidence and findings or to award benefits. Smolen, 80 F.3d at 1292. The Court 8 may award benefits if the record is fully developed and further administrative 9 proceedings would serve no useful purpose. Id. Remand is appropriate when 10 additional administrative proceedings could remedy defects. Rodriguez v. Bowen, 11 876 F.2d 759, 763 (9th Cir. 1989). In this case, the Court finds that further 12 development is necessary for a proper determination. 13 The ALJ’s decision is not supported by substantial evidence. On remand, the 14 ALJ is instructed to call a psychological medical expert and to reevaluate the 15 opinion evidence and all the medical evidence of record, making findings on each 16 of the five steps of the sequential evaluation process. The ALJ shall take into 17 consideration any other evidence or testimony relevant to Plaintiff’s disability 18 claim. 19 Accordingly, IT IS ORDERED: 20 1. Plaintiff’s Motion for Summary Judgment, ECF No. 18, is 21 GRANTED. 22 2. Defendant’s Motion for Summary Judgment, ECF No. 19, is 23 DENIED. 24 3. The matter is REMANDED to the Commissioner for additional 25 proceedings consistent with this Order. 26 4. An application for attorney fees may be filed by separate motion. 27 28 1 The District Court Executive is directed to file this Order and provide a copy 2 || to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff and the file shall be CLOSED. 4 5 DATED September 13, 2022.

JAMES A. GOEKE 8 a UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28