Cox v. Dudek

• Court: District Court, E.D. Washington
• Decided: March 17, 2025
• Docket: 1:24-cv-03137
• Status: Unknown

Opinion

1 2 FILED IN THE 3 U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 4 Mar 17, 2025 5 SEAN F. MCAVOY, CLERK 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF WASHINGTON

10 WHISPER C., No. 1:24-CV-03137-ACE

11 Plaintiff, ORDER GRANTING PLAINTIFF’S 12 MOTION 13 v.

14 LELAND DUDEK, ACTING ECF Nos. 8, 13 15 COMMISSIONER OF SOCIAL SECURITY,1 16

17 Defendant. 18 19 BEFORE THE COURT is Plaintiff’s Opening Brief and Defendant’s Brief 20 in response. ECF No. 8, 13. Attorney Chad L. Hatfield represents Plaintiff; 21 Special Assistant United States Attorney Ryan Ta Lu represents Defendant. After 22 reviewing the administrative record and the briefs filed by the parties, the Court 23 GRANTS Plaintiff’s Motion; DENIES Defendant’s Motion; and REMANDS the 24 matter to the Commissioner for additional proceedings pursuant to 42 U.S.C. § 25 405(g). 26

27 1Pursuant to Federal Rule of Civil Procedure 25(d), Leland Dudek, Acting 28 Commissioner of Social Security, is substituted as the named Defendant. 1 JURISDICTION 2 On April 15, 2013, Plaintiff was found disabled as of March 7, 2013 (age 3 10). Tr. 65-72. However, on July 7, 2016, the Commissioner conducted a 4 continuing disability review and determined that then 13-year-old Plaintiff was no 5 longer disabled and therefore no longer eligible for Supplemental Security Income. 6 Tr. 73, 75-78. A request for reconsideration of this determination was denied. Tr. 7 107-108. Administrative Law Judge (ALJ) C. Howard Prinsloo held a hearing on 8 June 4, 2020, and issued an unfavorable decision on June 24, 2020. The Appeals 9 Council denied Plaintiff’s request for review; however, on March 17, 2023, the 10 undersigned magistrate judge remanded the case for additional proceedings. See 11 1:21-CV-03028-ACE (ECF No. 26). The matter was remanded, a new 12 administrative hearing was held, and ALJ Prinsloo issued another unfavorable 13 decision on July 2, 2024. Tr. 591-609. Plaintiff filed the instant action for judicial 14 review on September 4, 2024. ECF No. 1. 15 STANDARD OF REVIEW 16 The ALJ is tasked with “determining credibility, resolving conflicts in 17 medical testimony, and resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 18 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 19 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 20 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 21 only if it is not supported by substantial evidence or if it is based on legal error. 22 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 23 defined as being more than a mere scintilla, but less than a preponderance. Id. at 24 1098. Put another way, substantial evidence “is such relevant evidence as a 25 reasonable mind might accept as adequate to support a conclusion.” Richardson v. 26 Perales, 402 U.S. 389, 401 (1971), quoting Consolidated Edison Co. v. NLRB, 305 27 U.S. 197, 229 (1938). If the evidence is susceptible to more than one rational 28 interpretation, the Court may not substitute its judgment for that of the ALJ. 1 Tackett, 180 F.3d at 1098; Morgan v. Comm’r of Social Sec. Admin., 169 F.3d 595, 2 599 (9th Cir. 1999). If substantial evidence supports the administrative findings, or 3 if conflicting evidence supports a finding of either disability or non-disability, the 4 ALJ’s determination is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1230 (9th 5 Cir. 1987). Nevertheless, a decision supported by substantial evidence will be set 6 aside if the proper legal standards were not applied in weighing the evidence and 7 making the decision. Brawner v. Sec’y of Health and Human Servs., 839 F.2d 432, 8 433 (9th Cir. 1988). 9 SEQUENTIAL EVALUATION PROCESS 10 A child is “disabled” for the purposes of receiving Supplemental Security 11 Income benefits if the child has a medically determinable physical or mental 12 impairment, which results in marked and severe functional limitations, and which 13 can be expected to result in death or which has lasted or can be expected to last for 14 a continuous period of not less than 12 months. 42 U.S.C. § 1382c(a)(3)(C)(i). 15 The Act requires the Commissioner to review a disabled child’s continued 16 eligibility for benefits at least once every three years. See 42 U.S.C. § 17 1382c(a)(3)(H)(ii)(I). The Commissioner has established a three-step medical 18 improvement sequential evaluation process for determining whether a child 19 continues to be disabled within the meaning of the Act. 20 C.F.R. § 416.994a(b). 20 At step one, the inquiry is whether there has been medical improvement in 21 the impairments that were present at the time of the most recent favorable 22 determination or decision finding the child disabled (the most recent favorable 23 determination is called the “comparison point decision” or “CPD,” and the 24 impairments that were present at the CPD are called the “CPD impairments”). 20 25 C.F.R. § 416.994a(b)(1); SSR 05-03p. Medical improvement is any decrease in 26 medical severity, except for minor changes. 20 C.F.R. § 416.994a(c). It must be 27 based on changes in the symptoms, signs, or laboratory findings associated with 28 the impairments. 20 C.F.R. § 416.994a(c). If there has been no medical 1 improvement, the child is still disabled, unless one of the exceptions to medical 2 improvement applies. 20 C.F.R. § 416.994a(b)(1). If there has been medical 3 improvement, the inquiry proceeds to step two. 4 At step two, the inquiry is whether the CPD impairments still meet or 5 medically or functionally equal the severity of the Listed impairments that they 6 met or equaled at the time of the CPD. See 20 C.F.R. § 416.994a(b)(2); SSR 05- 7 03p. The question at step two is whether the child’s CPD impairments still 8 functionally equal the Listings. See 20 C.F.R. § 416.994a(b)(2); SSR 05-03p. If 9 the impairments still functionally equal the Listings, the child is still disabled, 10 unless one of the exceptions to medical improvement applies. 20 C.F.R. § 11 416.994a(b)(2). If they do not, the inquiry proceeds to step three. 20 C.F.R. § 12 416.994a(b)(2). 13 At step three, the inquiry is whether the child is currently disabled 14 considering all current impairments, including those the child did not have at the 15 time of the CPD and those that the Commissioner did not consider at that time. 20 16 C.F.R. § 416.994a(b)(3). This first involves determining whether the child’s new 17 or unconsidered impairments are “severe” – meaning more than slight 18 abnormalities that cause no more than minimal functional limitations. 20 C.F.R. § 19 416.994a(b)(3)(i); 20 C.F.R. § 416.924(c). If the impairments are not severe, the 20 child’s disability has ended. 20 C.F.R. § 416.994a(b)(3)(i). If they are severe, the 21 question is whether they meet or medically equal the Listings in 20 C.F.R. Part 22 404, Subpart P, App’x 1. See 20 C.F.R. § 416.994a(b)(3)(ii). If they do, the 23 child’s disability continues. 20 C.F.R. § 416.994a(b)(3)(ii). If not, the question is 24 whether they functionally equal the Listings. 20 C.F.R. § 416.994a(b)(3)(iii). If 25 they do, the child’s disability continues. 20 C.F.R. § 416.994a(b)(3)(iii). If not, 26 the child’s disability has ended. 20 C.F.R. § 416.994a(b)(3)(iii). 27 /// 28 /// 1 Determining whether a child’s impairments functionally equal the Listings 2 requires an assessment of the child’s limitations in six broad areas of functioning, 3 called “domains.” 20 C.F.R. § 416.926a(b)(1). The six domains are: (1) 4 “Acquiring and Using Information,” (2) “Attending and Completing Tasks,” (3) 5 “Interacting and Relating with Others,” (4) “Moving About and Manipulating 6 Objects,” (5) “Caring for Yourself,” and (6) “Health and Physical Well-being.” 20 7 C.F.R. § 416.926a(b)(1)(i-vi). In making this assessment, the factfinder must 8 compare how appropriately, effectively, and independently the impaired child 9 performs activities compared to the performance of other children of the same age 10 who do not have impairments. 20 C.F.R. § 416.926a(b). 11 The child’s impairment or combination of impairments will be found to 12 functionally equal the Listings if the child has “marked” limitations in at least two 13 of the domains or if the child has “extreme” limitations in any one of the six 14 domains. 20 C.F.R. § 416.926a(d). 15 ADMINISTRATIVE FINDINGS 16 The ALJ determined that Plaintiff had medically improved and was no 17 longer under a disability as of July 7, 2016. Tr. 592, 609. 18 With respect to Plaintiff’s condition at the time of the CPD, the ALJ made 19 the following findings: 20 The CPD was April 15, 2013. Tr. 595. At that time, Plaintiff had the 21 following medically determinable impairments: attention deficit hyperactive 22 disorder (ADHD) and mood disorder. Id. These impairments were found to meet 23 the Listings. Tr. 595. 24 With respect to the three-step medical improvement review standard, the 25 ALJ made the following findings: 26 Step one: the ALJ found there had been a decrease in medical severity of 27 the impairments that were present at the time of the CPD (citing 20 C.F.R. § 28 416.994a(c)). Tr. 595. 1 Step two: the ALJ found Plaintiff’s CPD impairments no longer 2 functionally equaled the severity of the Listed impairments (citing 20 C.F.R. § 3 416.994a(b)(2); 20 C.F.R. § 416.926a; SSR 05-03p). Tr. 596. 4 Step three: the ALJ found Plaintiff has the following severe impairments: 5 posttraumatic stress disorder (PTSD) and depression. Tr. 596. The ALJ found 6 Plaintiff’s impairments neither meet/medically equals one of the Listed 7 impairments nor functionally equal the Listings. Tr. 596-597 (citing 20 C.F.R. § 8 416.925; 20 C.F.R. § 416.926; 20 C.F.R. § 416.924(d); 20 C.F.R. § 416.926a). 9 Specifically, the ALJ found Plaintiff has “less than marked” limitations in the 10 domains of (1) acquiring and using information, (2) attending and completing 11 tasks, (3) interacting and relating with others, and (5) caring for yourself and “no 12 limitation” in (4) moving about and manipulating objects and (6) health and 13 physical well-being. Tr. 604-608. 14 Because Plaintiff has not had an impairment or combination of impairments 15 resulting in either “marked” limitations in two domains of functioning or 16 “extreme” limitation in one domain of functioning, the ALJ found Plaintiff’s 17 disability ended as of July 7, 2016. Tr. 609. 18 ISSUES 19 The question presented is whether substantial evidence supports the ALJ’s 20 decision denying benefits and, if so, whether that decision is based on proper legal 21 standards. 22 Plaintiff asserts the ALJ once again erred by: (1) improperly evaluating the 23 opinions of the medical sources and (2) rejecting Plaintiff’s subjective complaints. 24 ECF No. 8 at 5. 25 DISCUSSION 26 A. Medical Opinions 27 Plaintiff contends the ALJ erred by improperly evaluating the opinions of his 28 medical providers and thus failing to find Plaintiff disabled as meeting or equaling 1 the Listings. ECF No. 8 at 8. Defendant responds that the ALJ reasonably 2 evaluated the medical opinions in finding Plaintiff’s mental impairments no longer 3 met or equaled the Listings. ECF No. 13 at 8. 4 1. Kristylynne Goveia, LICSW 5 Ms. Goveia, Plaintiff’s treating counselor provided the following assessment 6 on May 8, 2018:

7 [Plaintiff] qualifies for [Severe Emotional Disturbance] due to an 8 impairment in functioning in the family, at school, and with social interactions. [Plaintiff] is experiencing impairment in school work and has 9 failing grades for more than the last 6 months. [Plaintiff] reports she has no 10 friends. [Plaintiff] has unresolved trauma and trauma reminders that need 11 f urther treatment. 12 Tr. 437. 13 The ALJ’s June 24, 2020, decision failed to discuss Ms. Goveia’s opinions, 14 Tr. 20-33, and the undersigned judicial officer determined in the March 2023 15 remand order that the ALJ erred by failing to develop the record with respect to 16 Ms. Goveia. See 1:21-CV-03028-ACE (ECF No. 26 at 10-11). The undersigned 17 concluded, “the ALJ should have contacted Ms. Goveia to obtain a more fulsome 18 medical source statement, lest potentially significant and probative evidence from 19 the only treating provider be excluded from the record,” and directed the ALJ, on 20 remand, to obtain an updated medical source statement from Ms. Goveia. The ALJ 21 subsequently failed to comply with this Court’s March 2023 order to develop the 22 record with respect to Ms. Goveia. 23 An administrative agency is bound on remand to apply the legal principles 24 set out by the reviewing court. Jackson v. Berryhill, 2018 WL 1466423 at *2 25 (W.D. Wash. 2018) (citing Ischay v. Barnhart, 383 F.Supp.2d 1199, 1213-1214 26 (C.D. Cal. 2005); Sullivan v. Hudson, 490 U.S. 877, 886 (1989) (citations omitted) 27 (deviation from the court’s remand order in the subsequent administrative 28 proceedings is itself legal error, subject to reversal on further judicial review)); see 1 also United Gas Improvement Co. v. Continental Oil Co., 381 U.S. 392, 406 2 (1965) (explaining that the agency must act upon the court’s correction on 3 remand). In Social Security cases, when the Appeals Council remands a case to 4 the ALJ, the ALJ must take any action ordered by the Appeals Council and must 5 follow the specific instructions of the reviewing court. 20 C.F.R. §§ 404.977(b); 6 Samples v. Colvin, 103 F.Supp.3d 1227, 1231-1232 (D. Or. 2015). 7 The ALJ failed to follow this Court’s March 2023 order to obtain an updated 8 medical source statement from Ms. Goveia. Although the ALJ mentioned that 9 Plaintiff’s attorney had been unable to obtain an updated medical source statement 10 from Ms. Goveia, Tr. 591, the onus to comply with the Court’s order is squarely on 11 the ALJ, not Plaintiff’s counsel. The ALJ’s July 2024 decision does not describe 12 any attempts made by the ALJ to contact Ms. Goveia or explain why those 13 attempts, if any, were unsuccessful. The ALJ thus erred, and a remand shall again 14 be required to further develop the record with respect to Ms. Goveia’s opinion. 15 2. Cecilia Cooper, Ph.D. 16 On May 3, 2017, examining psychologist Cecilia Cooper, Ph.D., completed 17 a psychological evaluation of Plaintiff, noting that Plaintiff “wants to go to an 18 alternative school so that she can receive one on one assistance.” Tr. 428. Dr. 19 Cooper wrote as follows: 20

“[Plaintiff] has problems with depression and anxiety that result in strained 21 relationships at home and a felt need, on her part, for more one on one assistance in school to facilitate learning. She appears to respond more 22 favorably to that kind of help than to counseling or medication monitoring. 23 She is seeking a transfer to an alternative school. She would probably be 24 more comfortable in that type of setting because of the accommodations 25 p rovided.” 26 Tr. 433 (emphasis added). 27 The ALJ accorded Dr. Cooper’s opinion “little weight” because it failed to 28 specifically articulate Plaintiff’s functioning in any of the six domains and was not 1 consistent with Plaintiff’s documented improved mood and functioning when 2 compliant with medication and counseling. Tr. 603. 3 Plaintiff contends “Dr. Cooper found that [Plaintiff] requires one-on-one 4 assistance” and the ALJ failed to evaluate the supportability or consistency of Dr. 5 Cooper’s opinion. ECF No. 8 at 16. Plaintiff’s argument with respect to Dr. 6 Cooper mischaracterizes Dr. Cooper’s statement2 and misstates the applicable 7 law.3 ECF No. 8 at 16; ECF No. 14 at 7. In any event, given the ALJ’s failure to 8 comply with this Court’s prior order to develop the record with respect to Ms. 9 Goveia as discussed above, and given this matter must be remanded to address that 10 egregious error, the Court shall direct the ALJ to reconsider and reevaluate the 11 opinion of Dr. Cooper on remand as well. 12 3. Nancy Winfrey, Ph.D. 13 On June 4, 2020, Nancy Winfrey, Ph.D., testified as a medical expert4 at the 14 administrative hearing and opined that Plaintiff had marked limitations in 15

16 2Dr. Cooper does not specifically opine that Plaintiff requires one-on-one 17 assistance as alleged by Plaintiff. Rather, it is apparent Dr. Cooper merely recited 18 Plaintiff’s self-reported preference for one-on-one assistance in the school setting. 19 3Plaintiff erroneously argues the ALJ erred by failing to evaluate “the 20 supportability or consistency” of Dr. Cooper’s opinion. For claims filed on or after 21 March 27, 2017, new regulations apply that change the framework for how an ALJ 22 must weigh medical opinion evidence. The new regulations direct the ALJ to 23 consider the persuasiveness of each medical opinion, the supportability and 24 consistency of the opinion. However, because Plaintiff filed her application before 25 March 27, 2017, the ALJ was not required to apply the new regulations and assess 26 the supportability or consistency of Dr. Cooper’s opinion. 27 4When evaluating claims filed prior to March 27, 2017, the opinions of non- 28 examining doctors are entitled to less weight than doctors who treat or examine a 1 interaction and adaptation and met Listings 112.04 and 112.15. Tr. 53-54. On 2 remand, the ALJ reassessed Dr. Winfrey’s opinion as directed by this Court and 3 again accorded it “little weight” finding it was unpersuasive given numerous 4 inconsistencies between her testimony and the record. Tr. 603. As this claim is 5 being remanded on other grounds, see supra, the Court finds, without discussion, 6 that the ALJ shall be directed to also reevaluate and reweigh this non-examining 7 medical professional’s prior hearing testimony and opinion. 8 B. Plaintiff’s Subjective Complaints 9 Plaintiff contends the ALJ also erred by failing to assess the testimony of 10 Plaintiff’s mother, Shannon C. ECF No. 8 at 19-21. Defendant responds that the 11 ALJ reasonably found that not all of Plaintiff’s symptom allegations were 12 consistent with the evidence. ECF No. 13 at 4-8. 13 In childhood disability cases, where the child is unable to adequately 14 describe her symptoms, the Commissioner accepts the testimony of the person 15 most familiar with the child’s condition, such as a parent. Smith ex rel. Enge v. 16 Massanari, 139 F.Supp.2d 1128, 1134 (9th Cir. 2001). In the Ninth Circuit, the 17 testimony of third parties, including parents of child claimants, is evaluated under 18 the standard applicable to lay witnesses. See Merrill ex rel. Merrill v. Apfel, 224 19 F.3d 1083, 1086 (9th Cir. 2000) (citing Dodrill v. Shalala, 12 F.3d 915, 919 (9th 20 Cir. 1993); Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001) (“Lay testimony as to 21 a claimant’s symptoms is competent evidence that an ALJ must take into account, 22 unless he or she expressly determines to disregard such testimony and gives 23 reasons germane to each witness for doing so.”). Although the germane reasons 24 precedent no longer applies to claims filed on or after March 27, 2017, this Court’s 25 precedent required ALJs to give “germane” reasons to each witness when 26 claimant. Benecke v. Barnhart, 379 F.3d 587, 592 (9th Cir. 2004); Lester v. 27 Chater, 81 F.3d 821, 830 (9th Cir. 1995). 28 1 discounting nonmedical lay testimony prior to March 27, 2017. Valentine v. 2 Comm’r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009). 3 While the ALJ’s reasons for discounting Shannon C.’s testimony may be 4 supported by the evidence of record (although those reasons are not entirely 5 transparent), this matter must be remanded to develop the record with respect to 6 Ms. Goveia and to reassess the opinions of Drs. Cooper and Winfrey. See supra. 7 Accordingly, on remand, the ALJ shall also reconsider Shannon C.’s testimony and 8 reassess what statements of Shannon C., if any, are not credible and, if deemed not 9 credible, what specific evidence undermines those statements. If the testimony of 10 Shannon C. is discounted, the ALJ must provide germane reasons. 11 CONCLUSION 12 Plaintiff argues the ALJ’s decision should be reversed and remanded for the 13 payment of benefits or, alternatively, for additional proceedings to resolve the 14 issues identified in the briefing. ECF No. 8 at 21-22. The Court has the discretion 15 to remand the case for additional evidence and findings or to award benefits. 16 Smolen, 80 F.3d at 1292. The Court may award benefits if the record is fully 17 developed and further administrative proceedings would serve no useful purpose. 18 Id. Remand is appropriate when additional administrative proceedings could 19 remedy defects. Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989). In this 20 case, the Court finds that further development is necessary for a proper 21 determination to be made and that it is appropriate that the reconsideration of 22 Plaintiff’s claim be performed by a different ALJ on remand. See Reed v. 23 Massanari, 270 F.3d 838, 845 (9th Cir. 2001) (remanding to different ALJ for fair 24 consideration of evidence despite no indication of ALJ bias); Ortiz v. Chater, 1997 25 WL 50217 at *3 n.1 (E.D. N.Y. 1997) (finding that “rather than have the same ALJ 26 review the claims a third time, a fresh look by another ALJ would be beneficial.”). 27 On remand, a new ALJ shall reconsider Plaintiff’s disability claim. The ALJ 28 shall specifically (1) develop the record by obtaining an updated medical source statement from Ms. Goveia; (2) reevaluate and reweigh the opinions of Drs. Cooper and Winfrey; and (3) reconsider the testimony of Shannon C. The ALJ 3|| shall also take into consideration any other evidence or testimony relevant to Plaintiffs disability claim. Based on the foregoing, IT IS HEREBY ORDERED: 5 1. Plaintiff’?s motion to reverse and remand, ECF No. 8, is GRANTED. 6 2. Defendant’s motion to affirm, ECF No. 13, is DENIED. 7 3. The Commissioner’s final decision is REVERSED and this case is REMANDED to the Commissioner for additional proceedings consistent with this 9}| Order. 10 4. An application for attorney fees may be filed by separate motion. 11 IT IS SO ORDERED. The District Court Executive shall file this Order and provide copies to counsel. Judgment shall be entered for Plaintiff and the 13]| file shall be CLOSED. 14 DATED March 17, 2025.

16 C, Oe ds ALEXANDER C. EKSTROM —_ UNITED STATES MAGISTRATE JUDGE

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