Durham v. Commissioner of Social Security

• Court: District Court, E.D. Washington
• Decided: August 7, 2019
• Docket: 1:18-cv-03166
• Status: Unknown

Opinion

1 2 3 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 4 Aug 07, 2019 5 SEAN F. MCAVOY, CLERK 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON

9 HOLLY D., No. 1:18-CV-03166-JTR

10 Plaintiff, ORDER GRANTING, IN PART, 11 PLAINTIFF’S MOTION FOR 12 v. SUMMARY JUDGMENT AND REMANDING FOR ADDITIONAL 13 ANDREW M. SAUL, PROCEEDINGS 14 COMMISSIONER OF SOCIAL SECURITY,1 15

16 Defendant.

17 BEFORE THE COURT are cross-motions for summary judgment. ECF 18 No. 13, 14. Attorney D. James Tree represents Holly D. (Plaintiff); Special 19 Assistant United States Attorney L. Jamala Edwards represents the Commissioner 20 of Social Security (Defendant). The parties have consented to proceed before a 21 magistrate judge. ECF No. 7. After reviewing the administrative record and the 22 briefs filed by the parties, the Court GRANTS, IN PART, Plaintiff’s Motion for 23 Summary Judgment; DENIES Defendant’s Motion for Summary Judgment; and 24

25 1 Andrew M. Saul is now the Commissioner of the Social Security 26 Administration. Accordingly, the Court substitutes Andrew M. Saul as the 27 Defendant and directs the Clerk to update the docket sheet. See Fed. R. Civ. P. 28 25(d). 1 REMANDS the matter to the Commissioner for additional proceedings pursuant to 2 42 U.S.C. § 405(g). 3 JURISDICTION 4 Plaintiff filed applications for Disability Insurance Benefits and 5 Supplemental Security Income on October 27, 2014, alleging disability since 6 October 26, 2014, due to a herniated disc in her lower back, rheumatoid arthritis, 7 and a deteriorating spine. Tr. 70, 250. The applications were denied initially and 8 upon reconsideration. Tr. 110-12, 118-29. Administrative Law Judge (ALJ) Larry 9 Kennedy held a hearing on June 6, 2017, Tr. 39-67, and issued an unfavorable 10 decision on July 5, 2017, Tr. 15-27. Plaintiff requested review from the Appeals 11 Council. Tr. 213. The Appeals Council denied Plaintiff’s request for review on 12 June 26, 2018. Tr. 1-5. The ALJ’s July 2017 decision thus became the final 13 decision of the Commissioner, which is appealable to the district court pursuant to 14 42 U.S.C. § 405(g). Plaintiff filed this action for judicial review on August 27, 15 2018. ECF No. 1, 4. 16 STATEMENT OF FACTS 17 Plaintiff was born in 1982 and was 32 years old as of the alleged onset date. 18 Tr. 25. She obtained her GED and attended culinary training through Job Corps. 19 Tr. 46-47, 251. She worked as a baker, a cashier, and a waitress. Tr. 48. 20 STANDARD OF REVIEW 21 The ALJ is responsible for determining credibility, resolving conflicts in 22 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 23 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 24 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 25 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 26 only if it is not supported by substantial evidence or if it is based on legal error. 27 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 28 defined as being more than a mere scintilla, but less than a preponderance. Id. at 1 1098. Put another way, substantial evidence is such relevant evidence as a 2 reasonable mind might accept as adequate to support a conclusion. Richardson v. 3 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one 4 rational interpretation, the Court may not substitute its judgment for that of the 5 ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 6 169 F.3d 595, 599 (9th Cir. 1999). If substantial evidence supports the 7 administrative findings, or if conflicting evidence supports a finding of either 8 disability or non-disability, the ALJ’s determination is conclusive. Sprague v. 9 Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision 10 supported by substantial evidence will be set aside if the proper legal standards 11 were not applied in weighing the evidence and making the decision. Brawner v. 12 Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 13 SEQUENTIAL EVALUATION PROCESS 14 The Commissioner has established a five-step sequential evaluation process 15 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 16 416.920(a); Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through 17 four, the burden of proof rests upon the claimant to establish a prima facie case of 18 entitlement to disability benefits. Tackett, 180 F.3d at 1098-1099. This burden is 19 met once a claimant establishes that a physical or mental impairment prevents the 20 claimant from engaging in past relevant work. 20 C.F.R. §§ 404.1520(a)(4), 21 416.920(a)(4). If a claimant cannot perform past relevant work, the ALJ proceeds 22 to step five, and the burden shifts to the Commissioner to show that (1) the 23 claimant can make an adjustment to other work; and (2) the claimant can perform 24 specific jobs which exist in the national economy. Batson v. Commissioner of 25 Social Sec. Admin., 359 F.3d 1190, 1193-1194 (2004). If a claimant cannot make 26 an adjustment to other work in the national economy, the claimant will be found 27 disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 28 /// 1 ADMINISTRATIVE DECISION 2 On July 5, 2017, the ALJ issued a decision finding Plaintiff was not disabled 3 as defined in the Social Security Act. 4 At step one, the ALJ found Plaintiff had not engaged in substantial gainful 5 activity since October 26, 2014, the alleged onset date. Tr. 17. 6 At step two, the ALJ determined Plaintiff had the following severe 7 impairments: rheumatoid arthritis, thoracic and lumbar spine degenerative disc 8 disease, urologic disorder, skin disorder, and obesity. Id. 9 At step three, the ALJ found Plaintiff did not have an impairment or 10 combination of impairments that met or medically equaled the severity of one of 11 the listed impairments. Tr. 19. 12 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and found 13 she could perform light exertion level work with the following limitations:

14 she is limited to frequent handling and fingering; she can occasionally 15 balance, stoop, and kneel; she is limited to no climbing or crawling; 16 and she must avoid concentrated exposure to vibration and hazards. 17 Tr. 20. 18 At step four, the ALJ found Plaintiff was capable of performing her past 19 relevant work as a pie maker, cashier, and waitress. Tr. 24-25. 20 Alternatively, at step five, the ALJ determined that, based on the testimony 21 of the vocational expert, and considering Plaintiff’s age, education, work 22 experience, and RFC, Plaintiff was capable of making a successful adjustment to 23 other work that existed in significant numbers in the national economy, including 24 the jobs of housekeeping cleaner, production assembler, and storage facility rental 25 clerk. Tr. 25-26. 26 The ALJ thus concluded Plaintiff was not under a disability within the 27 meaning of the Social Security Act at any time from October 26, 2014, the alleged 28 onset date, through the date of the ALJ’s decision, July 5, 2017. Tr. 26-27. 1 ISSUES 2 The question presented is whether substantial evidence supports the ALJ’s 3 decision denying benefits and, if so, whether that decision is based on proper legal 4 standards. 5 Plaintiff contends the ALJ erred by (1) improperly rejecting medical opinion 6 evidence; and (2) improperly rejecting Plaintiff’s subjective statements. 7 DISCUSSION 8 1. Plaintiff’s subjective statements 9 Plaintiff contends the ALJ erred by improperly rejecting her subjective 10 statements. ECF No. 13 at 14-20. 11 It is the province of the ALJ to make credibility determinations. Andrews v. 12 Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). However, the ALJ’s findings must be 13 supported by specific, cogent reasons. Rashad v. Sullivan, 903 F.2d 1229, 1231 14 (9th Cir. 1990). Once the claimant produces medical evidence of an underlying 15 medical impairment, the ALJ may not discredit testimony as to the severity of an 16 impairment merely because it is unsupported by medical evidence. Reddick v. 17 Chater, 157 F.3d 715, 722 (9th Cir. 1998). Absent affirmative evidence of 18 malingering, the ALJ’s reasons for rejecting the claimant’s testimony must be 19 “specific, clear and convincing.” Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 20 1996); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996). “General findings are 21 insufficient: rather the ALJ must identify what testimony is not credible and what 22 evidence undermines the claimant’s complaints.” Lester, 81 F.3d at 834; Dodrill v. 23 Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 24 The ALJ concluded Plaintiff’s medically determinable impairments could 25 reasonably be expected to cause some of her alleged symptoms; however, 26 Plaintiff’s statements concerning the intensity, persistence and limiting effects of 27 those symptoms were not entirely consistent with the medical and other evidence 28 of record. Tr. 19. The ALJ found Plaintiff’s pain complaints to be inconsistent 1 with the objective medical evidence of record and found her testimony regarding 2 urinary issues to be inconsistent with other recent statements in the record. Tr. 21- 3 23. 4 The ALJ’s reason for discounting Plaintiff’s subjective complaints with 5 respect to her urinary symptoms is not supported by substantial evidence. Plaintiff 6 testified that she experienced persistent urges to relieve herself, and had to urinate 7 once or twice an hour, depending on her liquid intake. Tr. 57. She noted her 8 doctors were still working on finding the proper medication combination to address 9 the problem. Tr. 58. The ALJ found Plaintiff’s testimony was inconsistent with 10 recent statements in the record indicating her urinary frequency and urgency 11 symptoms had improved with medication. Tr. 23. However, improvement in a 12 condition does not mean elimination of the condition. Holohan v. Massanari, 246 13 F.3d 1195, 1205 (9th Cir. 2001). The record reflects Plaintiff continued to have 14 symptoms, despite having some relief. Tr. 636, 640. Her medications were not 15 always effective, and thus were discontinued at times. Tr. 644, 640. Her urologist 16 continued to adjust her medications up through the month prior to the hearing. Tr. 17 636. The ALJ failed to cite to any evidence that indicates any inconsistency 18 between Plaintiff’s testimony and the medical record evidence. 19 The only other reason the ALJ offered for discounting Plaintiff’s testimony 20 was general inconsistency with the medical record. An ALJ may cite 21 inconsistencies between a claimant’s testimony and the objective medical evidence 22 in discounting the claimant’s symptom statements. Bray v. Comm’r of Soc. Sec. 23 Admin., 554 F.3d 1219, 1227 (9th Cir. 2009). But this cannot be the only reason 24 provided by the ALJ. See Lester, 81 F.3d at 834 (the ALJ may not discredit the 25 claimant’s testimony as to subjective symptoms merely because they are 26 unsupported by objective evidence). “[A]n ALJ does not provide specific, clear, 27 and convincing reasons for rejecting a claimant’s testimony by simply reciting the 28 medical evidence in support of his or her residual functional capacity 1 determination.” Brown-Hunter v. Colvin, 806 F.3d 487, 489 (9th Cir. 2015). The 2 ALJ’s bullet-point discussion of the medical evidence (Tr. 21-23) does not 3 constitute a clear and convincing discussion of the reasons he found Plaintiff’s pain 4 complaints to be inconsistent with the record. 5 Because the ALJ failed to offer clear and convincing reasons for discounting 6 Plaintiff’s subjective pain complaints, the decision is not supported by substantial 7 evidence. Upon remand, the ALJ shall re-evaluate Plaintiff’s testimony and 8 reassess what statements, if any, are not consistent with the medical evidence and 9 other evidence in the record, and what specific evidence undermines those 10 statements. 11 2. Medical opinion evidence 12 Plaintiff argues the ALJ erred by failing to properly consider the medical 13 opinion evidence of record. ECF No. 13 at 6-14. Plaintiff specifically asserts the 14 ALJ erred by disregarding the opinions from her treating provider Sonya Starr, 15 ARNP, and DSHS reviewing doctor Myrna Palasi, MD. Id. 16 A. Sonya Starr, ARNP 17 An ALJ may discount the opinion of an “other source,” such as a nurse 18 practitioner, if he provides “reasons germane to each witness for doing so.” 19 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). 20 Plaintiff’s treating nurse, Sonya Starr, completed a medical source statement 21 on May 8, 2015. Tr. 390-91. She opined continuing to work as a baker on a 22 regular basis would worsen Plaintiff’s back pain. Tr. 391. She further stated that it 23 was more probable than not that if Plaintiff attempted to work a full-time schedule, 24 she would miss work four or more days per month due to increased pain. Id. 25 The ALJ gave this opinion “slight weight,” finding it to be inconsistent with 26 objective findings and inconsistent with another treating provider’s opinion. Tr. 27 24. 28 /// 1 While consistency with the record is a factor that may be considered in 2 assessing the weight to be given to a treating source, 20 C.F.R. §§ 404.1527(c)(4), 3 404.1527(f), substantial evidence does not support the ALJ’s conclusion that Ms. 4 Starr’s opinion is inconsistent with the objective findings. The ALJ indicated the 5 opinion was inconsistent with evidence in the record that Plaintiff was ambulatory 6 during physical exams and had normal gait and range of motion in her back. Tr. 7 24. It is not clear that these objective findings are inconsistent with Ms. Starr’s 8 opinion. She commented only on the increased back pain Plaintiff would 9 experience and did not state that Plaintiff was unable to walk or had limited range 10 of motion. Therefore, the objective findings identified by the ALJ as examples of 11 inconsistency do not actually demonstrate inconsistency with Ms. Starr’s opinion. 12 Similarly, PAC Michael Urakawa’s opinion is not inconsistent with Ms. 13 Starr’s opinion. On April 4, 2016, Mr. Urakawa noted he would not complete 14 disability paperwork with respect to Plaintiff’s back condition until she had 15 completed a physical capacity evaluation, and he stated, “We cannot certify she 16 cannot work the rest of her life.” Tr. 532. Neither of these statements are 17 inconsistent with Plaintiff experiencing increased pain if she attempted to work full 18 time. Indeed, Mr. Urakawa did not comment on Plaintiff’s physical capacity at all. 19 Therefore, the ALJ’s conclusion that these two opinions are in some way 20 contradictory is not supported by substantial evidence. 21 The ALJ failed to offer any germane reason for discounting Ms. Starr’s 22 opinion. On remand, the ALJ will reconsider this opinion along with the entire 23 medical record. 24 B. Myrna Palasi, MD 25 Plaintiff asserts the ALJ erred in rejecting the opinion of reviewing doctor 26 Myrna Palasi, MD. ECF No. 13 at 12-14. 27 /// 28 /// 1 The Commissioner may reject the opinion of a non-examining physician by 2 reference to specific evidence in the medical record. Sousa v. Callahan, 143 F.3d 3 1240, 1244 (9th Cir. 1998). 4 On November 19, 2014, Dr. Myrna Palasi reviewed Plaintiff’s medical 5 records for the Washington State Department of Social and Health Services. Tr. 6 417. Dr. Palasi opined Plaintiff would be limited to a less than sedentary RFC. Id. 7 The ALJ gave little weight to Dr. Palasi’s opinion, noting Plaintiff had only 8 recently reestablished care following a hiatus from treatment, and that subsequent 9 records indicated improvement in her rheumatoid arthritis symptoms. Tr. 23-24. 10 The ALJ also noted physical exams indicated no motor weakness and intact gait, 11 and that the opinion was inconsistent with Plaintiff’s reported activities. Tr. 24. 12 As noted above, general consistency with the record is a legitimate factor for 13 an ALJ to consider in weighing the reliability of a medical opinion. 20 C.F.R. § 14 404.1527(c)(4). An ALJ may also consider a claimant’s activities in evaluating 15 medical opinion evidence. Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014). 16 However, because the claim is being remanded on other bases, the ALJ shall 17 reconsider Dr. Palasi’s opinion in evaluating the medical evidence as a whole. 18 CONCLUSION 19 Plaintiff argues the ALJ’s decision should be reversed and remanded for the 20 payment of benefits. The Court has the discretion to remand the case for additional 21 evidence and findings or to award benefits. Smolen v. Chater, 80 F.3d 1273, 1292 22 (9th Cir. 1996). The Court may award benefits if the record is fully developed and 23 further administrative proceedings would serve no useful purpose. Id. Remand is 24 appropriate when additional administrative proceedings could remedy defects. 25 Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989). In this case, the Court 26 finds that further development is necessary for a proper determination to be made. 27 The ALJ’s RFC determination is not supported by substantial evidence and 28 must be reevaluated. On remand, the ALJ shall reassess the medical evidence, reevaluate Plaintiff’s subjective complaints, formulate a new RFC, obtain supplemental testimony from a vocational expert, if necessary, and take into consideration any other evidence or testimony relevant to Plaintiff’s disability claim. 5 Accordingly, IT IS ORDERED: 6 1. Plaintiff’s Motion for Summary Judgment, ECF No. 13, is 7|| GRANTED, IN PART. 8 2. Defendant’s Motion for Summary Judgment, ECF No. 14, is 9|| DENIED. 10 3. The matter is REMANDED to the Commissioner for additional 11 |] proceedings consistent with this Order. 12 4. An application for attorney fees may be filed by separate motion. 13 The District Court Executive is directed to file this Order and provide a copy 14]| to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff and 15 || the file shall be CLOSED. 16 IT IS SO ORDERED. 17 DATED August 7, 2019.

-—«JOHNT.RODGERS 20 □ UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28