EASTERN DISTRICT OF WASHINGTON 1 Mar 29, 2024 2 SEAN F. MCAVOY, CLERK 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 BRIAN E., No. 2:22-CV-276-JAG 8 Plaintiff, ORDER GRANTING 9 PLAINTIFF’S MOTION 10 v. FOR SUMMARY JUDGMENT 11 MARTIN O’MALLEY, 12 COMMISSIONER OF SOCIAL 13 SECURITY,1 14 Defendant. 15 16 BEFORE THE COURT are cross-motions for summary judgment. 17 ECF Nos. 12, 14. Attorney Chad Hatfield represents Brian E. (Plaintiff); Special 18 Assistant United States Ryan Lu represents the Commissioner of Social Security 19 (Defendant). After reviewing the administrative record and the briefs filed by the 20 parties, the Court GRANTS Plaintiff’s Motion for Summary Judgment, DENIES 21 Defendant’s Motion for Summary Judgment, and REMANDS the matter for 22 further proceedings under sentence four of 42 U.S.C. § 405(g). 23 24 1 Martin O’Malley became the Commissioner of Social Security on December 20, 25 2023. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Martin 26 27 O’Malley is substituted for Kilolo Kijakazi as the defendant in this suit. No further 28 action need be taken to continue this suit. See 42 U.S.C. § 405(g). I. JURISDICTION 1 Plaintiff filed an application for benefits on August 3, 2017, alleging 2 3 disability since June 1, 2014.2 The application was denied initially and upon 4 reconsideration. Administrative Law Judge (ALJ) Jesse Shumway held a hearing 5 on April 17, 2020, and issued an unfavorable decision on April 27, 2020. 6 Tr. 12-30. This Court subsequently remanded the matter on December 17, 2021. 7 Tr. 526-27. The ALJ held a second hearing on September 8, 2022, and issued an 8 unfavorable decision on September 26, 2022. Tr. 448-70. Plaintiff appealed this 9 final decision of the Commissioner on November 14, 2022. ECF No. 1. The 10 parties have consented to proceed before the undersigned by operation of Local 11 Magistrate Judge Rule (LMJR) 2(b)(2), as no party returned a Declination of 12 Consent Form to the Clerk’s Office by the established deadline. ECF No. 4. 13 II. STANDARD OF REVIEW 14 The ALJ is responsible for determining credibility, resolving conflicts in 15 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 16 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 17 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 18 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 19 only if it is not supported by substantial evidence or if it is based on legal error. 20 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 21 defined as being more than a mere scintilla, but less than a preponderance. Id. at 22 1098. Put another way, substantial evidence is such relevant evidence as a 23 24 reasonable mind might accept as adequate to support a conclusion. Richardson v. 25 Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 26 U.S. 197, 229 (1938)). 27 28 2 Plaintiff later amended his alleged onset date to October 1, 2017. Tr. 452. If the evidence is susceptible to more than one rational interpretation, the 1 2 Court may not substitute its judgment for that of the ALJ. Tackett, 180 F.3d at 3 1098; Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). 4 If substantial evidence supports the administrative findings, or if conflicting 5 evidence supports a finding of either disability or non-disability, the ALJ’s 6 determination is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th 7 Cir. 1987). Nevertheless, a decision supported by substantial evidence will be set 8 aside if the proper legal standards were not applied in weighing the evidence and 9 making the decision. Brawner v. Sec’y of Health and Human Services, 839 F.2d 10 432, 433 (9th Cir. 1988). 11 III. SEQUENTIAL EVALUATION PROCESS 12 The Commissioner has established a five-step sequential evaluation process 13 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 14 416.920(a); Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). At steps one through 15 four, the claimant bears the burden of establishing a prima facie case of disability. 16 Tackett, 180 F.3d at 1098-99. This burden is met once a claimant establishes that a 17 physical or mental impairment prevents the claimant from engaging in past 18 relevant work. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). If a claimant cannot 19 perform past relevant work, the ALJ proceeds to step five, and the burden shifts to 20 the Commissioner to show (1) the claimant can make an adjustment to other work 21 and (2) the claimant can perform other work that exists in significant numbers in 22 23 the national economy. Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). If a 24 claimant cannot make an adjustment to other work in the national economy, the 25 claimant will be found disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 26 // 27 // 28 // IV. ADMINISTRATIVE FINDINGS 1 2 On September 26, 2022, the ALJ issued a decision finding Plaintiff was not 3 disabled as defined in the Social Security Act. 4 At step one, the ALJ found Plaintiff had not engaged in substantial gainful 5 activity during the period from his amended alleged onset date of October 1, 2017, 6 through his date last insured of December 31, 2018. Tr. 454. 7 At step two, the ALJ determined Plaintiff had the following severe 8 impairment: polysubstance use disorders. Tr. 454. 9 At step three, the ALJ found this impairment did not meet or equal the 10 requirements of a listed impairment. Tr. 456. 11 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and 12 determined Plaintiff could perform a full range of work at all exertional levels 13 subject to the following nonexertional limitations: he was limited to simple, 14 routine tasks; and he required a routine, predictable work environment with no 15 more than occasional changes. Tr. 458. 16 At step four, the ALJ found Plaintiff could not perform past relevant work. 17 Tr. 464. 18 At step five, the ALJ found there are jobs that exist in significant numbers in 19 the national economy that Plaintiff can perform. Tr. 464. 20 The ALJ thus concluded Plaintiff was not disabled from the amended 21 alleged onset date through the date last insured. Tr. 465. 22 23 V. ISSUES 24 The question presented is whether substantial evidence supports the ALJ’s 25 decision denying benefits and, if so, whether that decision is based on proper legal 26 standards.
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EASTERN DISTRICT OF WASHINGTON 1 Mar 29, 2024 2 SEAN F. MCAVOY, CLERK 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 BRIAN E., No. 2:22-CV-276-JAG 8 Plaintiff, ORDER GRANTING 9 PLAINTIFF’S MOTION 10 v. FOR SUMMARY JUDGMENT 11 MARTIN O’MALLEY, 12 COMMISSIONER OF SOCIAL 13 SECURITY,1 14 Defendant. 15 16 BEFORE THE COURT are cross-motions for summary judgment. 17 ECF Nos. 12, 14. Attorney Chad Hatfield represents Brian E. (Plaintiff); Special 18 Assistant United States Ryan Lu represents the Commissioner of Social Security 19 (Defendant). After reviewing the administrative record and the briefs filed by the 20 parties, the Court GRANTS Plaintiff’s Motion for Summary Judgment, DENIES 21 Defendant’s Motion for Summary Judgment, and REMANDS the matter for 22 further proceedings under sentence four of 42 U.S.C. § 405(g). 23 24 1 Martin O’Malley became the Commissioner of Social Security on December 20, 25 2023. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Martin 26 27 O’Malley is substituted for Kilolo Kijakazi as the defendant in this suit. No further 28 action need be taken to continue this suit. See 42 U.S.C. § 405(g). I. JURISDICTION 1 Plaintiff filed an application for benefits on August 3, 2017, alleging 2 3 disability since June 1, 2014.2 The application was denied initially and upon 4 reconsideration. Administrative Law Judge (ALJ) Jesse Shumway held a hearing 5 on April 17, 2020, and issued an unfavorable decision on April 27, 2020. 6 Tr. 12-30. This Court subsequently remanded the matter on December 17, 2021. 7 Tr. 526-27. The ALJ held a second hearing on September 8, 2022, and issued an 8 unfavorable decision on September 26, 2022. Tr. 448-70. Plaintiff appealed this 9 final decision of the Commissioner on November 14, 2022. ECF No. 1. The 10 parties have consented to proceed before the undersigned by operation of Local 11 Magistrate Judge Rule (LMJR) 2(b)(2), as no party returned a Declination of 12 Consent Form to the Clerk’s Office by the established deadline. ECF No. 4. 13 II. STANDARD OF REVIEW 14 The ALJ is responsible for determining credibility, resolving conflicts in 15 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 16 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 17 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 18 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 19 only if it is not supported by substantial evidence or if it is based on legal error. 20 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 21 defined as being more than a mere scintilla, but less than a preponderance. Id. at 22 1098. Put another way, substantial evidence is such relevant evidence as a 23 24 reasonable mind might accept as adequate to support a conclusion. Richardson v. 25 Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 26 U.S. 197, 229 (1938)). 27 28 2 Plaintiff later amended his alleged onset date to October 1, 2017. Tr. 452. If the evidence is susceptible to more than one rational interpretation, the 1 2 Court may not substitute its judgment for that of the ALJ. Tackett, 180 F.3d at 3 1098; Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). 4 If substantial evidence supports the administrative findings, or if conflicting 5 evidence supports a finding of either disability or non-disability, the ALJ’s 6 determination is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th 7 Cir. 1987). Nevertheless, a decision supported by substantial evidence will be set 8 aside if the proper legal standards were not applied in weighing the evidence and 9 making the decision. Brawner v. Sec’y of Health and Human Services, 839 F.2d 10 432, 433 (9th Cir. 1988). 11 III. SEQUENTIAL EVALUATION PROCESS 12 The Commissioner has established a five-step sequential evaluation process 13 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 14 416.920(a); Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). At steps one through 15 four, the claimant bears the burden of establishing a prima facie case of disability. 16 Tackett, 180 F.3d at 1098-99. This burden is met once a claimant establishes that a 17 physical or mental impairment prevents the claimant from engaging in past 18 relevant work. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). If a claimant cannot 19 perform past relevant work, the ALJ proceeds to step five, and the burden shifts to 20 the Commissioner to show (1) the claimant can make an adjustment to other work 21 and (2) the claimant can perform other work that exists in significant numbers in 22 23 the national economy. Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). If a 24 claimant cannot make an adjustment to other work in the national economy, the 25 claimant will be found disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 26 // 27 // 28 // IV. ADMINISTRATIVE FINDINGS 1 2 On September 26, 2022, the ALJ issued a decision finding Plaintiff was not 3 disabled as defined in the Social Security Act. 4 At step one, the ALJ found Plaintiff had not engaged in substantial gainful 5 activity during the period from his amended alleged onset date of October 1, 2017, 6 through his date last insured of December 31, 2018. Tr. 454. 7 At step two, the ALJ determined Plaintiff had the following severe 8 impairment: polysubstance use disorders. Tr. 454. 9 At step three, the ALJ found this impairment did not meet or equal the 10 requirements of a listed impairment. Tr. 456. 11 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and 12 determined Plaintiff could perform a full range of work at all exertional levels 13 subject to the following nonexertional limitations: he was limited to simple, 14 routine tasks; and he required a routine, predictable work environment with no 15 more than occasional changes. Tr. 458. 16 At step four, the ALJ found Plaintiff could not perform past relevant work. 17 Tr. 464. 18 At step five, the ALJ found there are jobs that exist in significant numbers in 19 the national economy that Plaintiff can perform. Tr. 464. 20 The ALJ thus concluded Plaintiff was not disabled from the amended 21 alleged onset date through the date last insured. Tr. 465. 22 23 V. ISSUES 24 The question presented is whether substantial evidence supports the ALJ’s 25 decision denying benefits and, if so, whether that decision is based on proper legal 26 standards. 27 Plaintiff raises the following issues for review: (A) whether the ALJ 28 improperly evaluated the medical opinion evidence; (B) whether the ALJ erred by discounting Plaintiff’s testimony; (C) whether the ALJ erred at step two; (4) 1 2 whether the ALJ erred at step three; and (D) whether the ALJ erred at step five. 3 ECF No. 12 at 5. 4 VI. DISCUSSION 5 A. Medical Evidence. 6 Under regulations applicable to this case, the ALJ is required to articulate 7 the persuasiveness of each medical opinion, specifically with respect to whether 8 the opinions are supported and consistent with the record. 20 C.F.R. § 9 416.920c(a)-(c). An ALJ’s consistency and supportability findings must be 10 supported by substantial evidence. See Woods v. Kijakazi, 32 F.4th 785, 792 (9th 11 Cir. 2022). 12 Plaintiff contends the ALJ misevaluated two sets of medical opinions. ECF 13 No. 12 at 7-13. The Court addresses each in turn. 14 1. Gregory J. Charboneau, Ed.D. 15 Dr. Charboneau examined Plaintiff on July 19, 2018, conducting a clinical 16 interview and administering as series of clinical tests, and assessed Plaintiff 17 “would have some difficulties performing in a competitive work environment due 18 to his memory scores” – noting they were “borderline to extremely low” – and 19 “due to significant anxiety.” Tr. 389. Dr. Charboneau opined Plaintiff “would 20 have difficulty sustaining attention, concentrating and exerting mental control, 21 evidenced by his impaired memory scores.” Tr. 389. 22 23 Although the ALJ found “[m]uch” of the opinion to be “consistent with the 24 overall record and supported by [the doctor’s] own evaluation,” he concluded the 25 doctor’s opinion “is too vague to be any real assistance in determining the residual 26 functional capacity.” Tr. 461; see also Tr. 462 (recognizing Dr. Charboneau’s 27 opinions are “not unpersuasive,” but concluding “they do lack value in that they 28 are vague and without clear relevance to the claimant’s residual functional capacity.”). In light of the ALJ’s finding that Dr. Charboneau’s opinion was 1 2 consistent, supported, and persuasive, the ALJ should have contacted the doctor to 3 clarify any ambiguities and obtain a more fulsome medical source statement, lest 4 potentially significant, probative, and helpful evidence be excluded from the 5 record. See Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (“The ALJ 6 in a social security case has an independent duty to fully and fairly develop the 7 record and to assure that the claimant’s interests are considered.”) (internal 8 quotation marks and citations omitted). Because the ALJ failed to do so, the Court 9 concludes the ALJ erred in assessing Dr. Charboneau’s opinion. 10 2. Michael Brown, Ph.D, and Christmas Covell, Ph.D. 11 Plaintiff argues the ALJ erred by declining to address the doctors’ 12 assessment of other severe impairments, such as neurocognitive disorder. ECF 13 No. 12 at 13. The Court declines to address this argument in light of the ALJ’s 14 need to reformulate step two findings and reassess Plaintiff’s testimony on remand, 15 as discussed below. 16 B. Plaintiff’s Testimony. 17 Plaintiff contends the ALJ erroneously discounted his testimony. ECF 18 No. 12 at 18-20. Where, as here, the ALJ determines a claimant has presented 19 objective medical evidence establishing underlying impairments that could cause 20 the symptoms alleged, and there is no affirmative evidence of malingering, the 21 ALJ can only discount the claimant’s testimony as to symptom severity by 22 23 providing “specific, clear, and convincing” reasons supported by substantial 24 evidence. Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). The Court 25 concludes the ALJ failed to offer clear and convincing reasons to discount 26 Plaintiff’s testimony. 27 The ALJ first discounted Plaintiff’s testimony as inconsistent with the 28 medical evidence. Tr 459. However, because the ALJ erred by discounting Dr. Charboneau’s opinion, and necessarily failed to properly evaluate the medical 1 2 evidence, as discussed above, this is not a valid ground to discount Plaintiff’s 3 testimony. 4 Second, the ALJ discounted Plaintiff’s testimony as inconsistent with his 5 “lack of treatment” and “gaps” in treatment. Tr. 459-60. This finding is legally 6 erroneous. The Ninth Circuit has made clear that “it is a questionable practice to 7 chastise one with a mental impairment for the exercise of poor judgment in seeking 8 rehabilitation.” Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996) (quoting 9 Blankenship v. Bowen, 874 F.2d 1116, 1124 (6th Cir. 1989)). 10 Third, the ALJ discounted Plaintiff’s testimony as inconsistent with 11 Plaintiff’s activities. In support, the ALJ found Plaintiff “reported high functioning 12 of daily living, such as caring for pets, cooking, performing household chores, 13 driving, going out alone, shopping, managing finances, reading, fishing, and 14 traveling internationally.” Tr. 460. These minimal activities neither “meet the 15 threshold for transferable work skills,” Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 16 2007) (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989), superseded on 17 other grounds by 20 C.F.R. § 404.1502(a)), nor validly undermine Plaintiff’s 18 allegations, see Diedrich v. Berryhill, 874 F.3d 634, 643 (9th Cir. 2017) (“House 19 chores, cooking simple meals, self-grooming, paying bills, writing checks, and 20 caring for a cat in one’s own home, as well as occasional shopping outside the 21 home, are not similar to typical work responsibilities.”); Reddick v. Chater, 157 22 23 F.3d 715, 722 (9th Cir. 1998) (“Several courts, including this one, have recognized 24 that disability claimants should not be penalized for attempting to lead normal lives 25 in the face of their limitations.”). 26 Finally, the ALJ discounted Plaintiff’s testimony as inconsistent with his 27 level of work activity. The ALJ noted “[t]he record shows the claimant was able to 28 perform significant work activity approaching near-substantial gainful levels through at least Summer 2018.” Tr. 460. However, the ALJ’s step one finding 1 2 undermines, if not casts doubt on, this finding. See Tr. 454 (“The claimant 3 reported he performed landscaping work from 2012 through May 2018. However, 4 he testified at the 2020 hearing that he ceased working at this position in October 5 2017. Although there is further evidence he was still performing some work 6 activity in 2018, the totality of the evidence does not establish with certainty that 7 this work activity constituted substantial gainful activity. The claimant has 8 testified he significantly reduced his work hours and received assistance running 9 the business from his wife. I thus conclude the evidence is insufficient to 10 demonstrate the claimant engaged in substantial gainful activity beyond October 1, 11 2017.”). Notably, the Commissioner does not defend the ALJ’s finding on this 12 issue. See ECF No. 14 at 6-7 (defending only the ALJ’s discounting of Plaintiff’s 13 testimony based on contradictions with the medical evidence and Plaintiff’s 14 activities of daily living). 15 The ALJ accordingly erred by discounting Plaintiff’s testimony. 16 VII. CONCLUSION 17 This case must be remanded because the ALJ harmfully misevaluated the 18 medical evidence and Plaintiff’s testimony. Plaintiff contends the Court should 19 remand for an immediate award of benefits. Such a remand should be granted only 20 in a rare case and this is not such a case. The medical opinions and Plaintiff’s 21 testimony must be reweighed and this is a function the Court cannot perform in the 22 23 first instance on appeal. Further proceedings are thus not only helpful but 24 necessary. See Brown-Hunter v. Colvin, 806 F.3d 487, 495 (9th Cir. 2015) (noting 25 a remand for an immediate award of benefits is an “extreme remedy,” appropriate 26 “only in ‘rare circumstances’”) (quoting Treichler v. Comm’r of Soc. Sec. Admin., 27 775 F.3d 1090, 1099 (9th Cir. 2014)). 28 1 Because the ALJ misevaluated the medical evidence and Plaintiff's || testimony, the ALJ will necessarily need to make new step two and three findings, 3|| which were based on the ALJ’s assessment of both the medical evidence and 4|| Plaintiff's testimony, and determine whether the RFC needs to be adjusted. For 5|| this reason, the Court need not reach Plaintiff's remaining assignments of error. 6|| See PDK Labs. Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004) (“[I]f it is not 7|| necessary to decide more, it is necessary not to decide more.”) (Roberts, J., concurring in part and concurring in the judgment). 9 On remand, the ALJ shall develop the record, as needed; reconsider the 10 opinions of Drs. Charboneau, Brown, and Covell; reassess Plaintiff's testimony; 11)) and reevaluate the remaining steps of the sequential evaluation, as appropriate. 12 Having reviewed the record and the ALJ’s findings, the Commissioner’s 13 final decision is REVERSED and this case is REMANDED for further proceedings under sentence four of 42 U.S.C. § 405(g). Therefore, IT IS HEREBY ORDERED: : 1. Plaintiff's Motion for Summary Judgment, ECF No. 12, is
18 GRANTED. 19 2. Defendant’s Motion for Summary Judgment, ECF No. 14, is 0 DENIED. 3. The District Court Executive is directed to file this Order and provide a copy to counsel for Plaintiff and Defendant. Judgment shall be entered for 73 || Plaintiff and the file shall be CLOSED. 24 IT IS SO ORDERED. 35 DATED March 29, 2024.
27 JAMES A. GOEKE 28 a UNITED STATES MAGISTRATE JUDGE