Hall v. O'Malley

• Court: District Court, E.D. Washington
• Decided: January 8, 2024
• Docket: 2:23-cv-00143
• Status: Unknown

Opinion

EASTERUN. SD.I SDTIRSITCRTI COTF CWOAUSRHTI NGTON 1 Jan 08, 2024

2 SEAN F. MCAVOY, CLERK 3 UNITED STATES DISTRICT COURT

4 EASTERN DISTRICT OF WASHINGTON 5 JAMIE H., 6 No. 2:23-CV-00143-WFN Plaintiff, 7 ORDER -vs- 8 MARTIN O'MALLEY, Commissioner of 9 Social Security,1

10 Defendant. 11 12 Jamie H. [Plaintiff] brings this action seeking judicial review of the Commissioner of 13 Social Security's final decision denying her application for disability benefits. ECF No. 1. 14 Attorney Chad Hatfield represents Plaintiff. Special Assistant United States Attorney 15 Jeffrey E. Staples represents the Commissioner [Defendant]. After reviewing the 16 administrative record and the briefs filed by the parties, the Court REVERSES the 17 Commissioner's final decision. 18 JURISDICTION 19 Plaintiff applied for Disability Insurance Benefits on September 24, 2019, alleging 20 disability beginning on April 10, 2007. Tr. 213–23. The application was denied initially, Tr. 21 65–74, and on reconsideration, Tr. 76–84. Administrative Law Judge [ALJ] Marie Palachuk 22 held a hearing on September 23, 2020, Tr. 35–64, and issued an unfavorable decision on 23 October 15, 2020, Tr. 17–28. The Appeals Council denied review on December 10, 2020. 24 Tr. 1–6. Plaintiff appealed to the district court on February 12, 2021. Tr. 7875–77. The court 25 26 1 This action was originally filed against Kilolo Kijakazi in her capacity as the acting 27 Commissioner of Social Security. Martin O'Malley is substituted as the defendant because 28 he is now the Commissioner of Social Security. See Fed. R. Civ. P. 25(d). 1 remanded for further proceedings because the ALJ erred by (1) rejecting Plaintiff's 2 subjective characterization of her symptoms for inadequate reasons, (2) finding Plaintiff's 3 mental impairments did not satisfy the Paragraph C criteria without an adequate explanation, 4 (3) assessing Plaintiff's neuropathy and leg pain and migraine headaches as nonsevere, and 5 (4) determining Plaintiff could performa significant number of jobs in the national economy 6 without testimony from a vocational expert. Tr. 7878–98. ALJ Palachuk held a second 7 hearing on February 16, 2023, Tr. 7829–47, and denied benefits again on March 14, 2023, 8 Tr. 7800–28. The ALJ's March 2023 decision is the Commissioner's final decision, 20 9 C.F.R. § 416.1484, which is appealable to the district court pursuant to 42 U.S.C. § 405(g). 10 Plaintiff filed this action for judicial review on May 10, 2023. ECF No. 1. 11 FACTS 12 Plaintiff was born in 1978 and was 28 years of age as of her alleged onset date. Tr. 13 214. She completed high school and some college. Tr. 252, 1330. Plaintiff has past work as 14 a personnel clerk, cashier, and fast-food worker Tr. 2233, 3546. She alleges disability based 15 on a bilateral leg injury, migraines, generalized anxiety, post-traumatic stress disorder 16 [PTSD], bipolar disorder, agoraphobia, attention-deficit disorder, borderline personality 17 disorder, insomnia, and high blood pressure. Tr. 251. 18 STANDARD OF REVIEW 19 The ALJ is responsible for determining credibility, resolving conflicts in medical 20 testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th 21 Cir.1995). The Court reviews the ALJ's legal conclusions de novo but gives deference 22 to a reasonable interpretation of a statute the agency is charged with administering. 23 See McNatt v. Apfel, 201 F.3d 1084, 1087 (9th Cir. 2000). The ALJ's decision will be 24 reversed only if it is not supported by substantial evidence or if it is based on legal error. 25 Tackett v. Apfel, 180 F.3d 1094, 1097–98 (9th Cir. 1999). Substantial evidence is more than 26 a scintilla, but less than a preponderance. Id. at 1098. Put another way, "'[i]t means such 27 relevant evidence as a reasonable mind might assess as adequate to support a conclusion.'" 28 Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 1 U.S. 197, 229 (1938)). If the evidence is susceptible to more than one rational interpretation, 2 the Court may not substitute its judgment for the ALJ's. Tackett, 180 F.3d at 1097–98; 3 Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). The ALJ's 4 decision is conclusive if it is supported by substantial evidence, even if conflicting evidence 5 supports a finding of either disability or non-disability. Sprague v. Bowen, 812 F.2d 1226, 6 1229–30 (9th Cir. 1987). But a decision supported by substantial evidence will still be set 7 aside if it is based on legal error. Brawner v. Sec'y of Health & Hum. Servs., 839 F.2d 432, 8 433 (9th Cir. 1988). 9 SEQUENTIAL EVALUATION PROCESS 10 The Commissioner has established a five-step sequential evaluation process for 11 determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 416.920(a); Bowen v. 12 Yuckert, 482 U.S. 137, 140–42 (1987). In steps one through four the claimant bears the 13 burden of establishing disability. Tackett, 180 F.3d at 1098–99. This burden is met once a 14 claimant establishes that a physical or mental impairment prevents her from engaging in past 15 relevant work. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). If a claimant cannot perform 16 past relevant work, the ALJ proceeds to step five, and the burden shifts to the Commissioner 17 to show (1) the claimant can make an adjustment to other work; and (2) the claimant can 18 perform specific jobs that exist in the national economy. Batson v. Comm'r of Soc. Sec. 19 Admin., 359 F.3d 1190, 1193–94 (9th Cir. 2004). If a claimant cannot make an adjustment 20 to other work in the national economy, she will be found disabled. 20 C.F.R. §§ 21 404.1520(a)(4)(v), 416.920(a)(4)(v). 22 ADMINISTRATIVE DECISION 23 On March 17, 2023, the ALJ issued a decision finding Plaintiff was not disabled as 24 defined in the Social Security Act. Tr. 7803–20. 25 Preliminarily, the ALJ found Plaintiff was last insured under the Social Security Act 26 on September 30, 2008. Tr. 7805. 27 At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity 28 since the alleged onset date. Tr. 7806. 1 At step two, the ALJ determined Plaintiff had the following severe impairments 2 through her date last insured: "diabetes mellitus, obesity, hearing loss in the left ear, a history 3 of migraines, shin splints/leg pain, bipolar disorder, and anxiety." Tr. 7806. 4 At step three, the ALJ found Plaintiff did not have an impairment or combination of 5 impairments that met or medically equaled the severity of one of the listed impairments. Tr. 6 7806–08. 7 The ALJ assessed Plaintiff's Residual Functional Capacity [RFC] and found she could 8 perform medium work "except she could understand, remember, and carry out simple, 9 routine tasks and familiar, complex tasks. She could tolerate occasional changes. She was 10 not capable of assembly-line pace or similarly fast-paced work. She could tolerate 11 occasional and superficial interaction with the public." Tr. 7811. 12 At step four, the ALJ found Plaintiff had no past relevant work. Tr. 7819. 13 At step five, the ALJ found, based on the vocational expert's testimony, and 14 considering Plaintiff's age, education, work experience, and RFC, there were other jobs that 15 existed in significant numbers in the national economy that Plaintiff could perform through 16 her date last insured. Tr. 7819–20. She specifically identified the representative occupations 17 of hand packager, cleaner, and cook helper. Id. 18 The ALJ thus concluded Plaintiff was not under a disability within the meaning of the 19 Social Security Act at any time from the alleged onset date through the date last insured. Tr. 20 7820. 21 ISSUES 22 The question presented is whether substantial evidence supports the ALJ's 23 decision denying benefits and, if so, whether the decision is based on proper legal 24 standards. 25 Plaintiff contends the ALJ erred by (1) rejecting Plaintiff's subjective complaints and 26 failing to account for her neuropathy symptoms, (2) improperly evaluating medical opinion 27 evidence, (3) failing to find Plaintiff disabled at step three, and (4) conducting an inadequate 28 analysis at step five. 1 DISCUSSION 2 (1) Plaintiff's Subjective Symptom Testimony 3 Plaintiff contends the ALJ erred by rejecting her subjective symptom testimony. ECF 4 No. 9 at 15–20. 5 It is the province of the ALJ to make determinations regarding a claimant's 6 subjective complaints. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 7 However, the ALJ's findings must be supported by specific, cogent reasons. Rashad v. 8 Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Once the claimant produces medical 9 evidence of an underlying medical impairment, the ALJ may not discredit testimony as 10 to the severity of an impairment merely because it is unsupported by medical evidence. 11 Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). Absent affirmative evidence of 12 malingering, the ALJ's reasons for rejecting the claimant's testimony must be "specific, 13 clear and convincing." Smolen, 80 F.3d at 1281; see also Lester v. Chater, 81 F.3d 821, 14 834 (9th Cir. 1996). "General findings are insufficient: rather the ALJ must identify 15 what testimony is not credible and what evidence undermines the claimant's 16 complaints." Lester, 81 F.3d at 834; see also Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 17 1993). 18 Plaintiff testified to debilitating depression that prevents her from leaving the house. 19 Tr. 7812. She claimed that medications would work for a short time and then lose their 20 effectiveness. Id. Her mental symptoms were so overwhelming that she could not 21 accomplish more than one task per day. Id. Plaintiff also testified to debilitating nerve pain 22 in her legs and migraines, neither of which could be treated effectively with medication. Id. 23 In the October 2020 decision, the ALJ discounted Plaintiff's subjective testimony in 24 part because her mental health improved with medication, she worked for a brief period, and 25 she was not consistently engaged in treatment. Tr. 25–26. While the district court's previous 26 order previously found that"the ALJ reasonably relied on Plaintiff's gap in treatment to 27 discount her mental health complaints," Tr. 7894, it also found "that the ALJ erred in 28 discounting Plaintiff's subjective characterization of her symptoms based on Plaintiff's 1 response to medication and her actions in working and otherwise seeking employment." Tr. 2 7896 (footnote omitted). 3 On remand, the ALJ again found Plaintiff's medically determinable impairments 4 could reasonably be expected to cause the alleged symptoms; however, she also again found 5 Plaintiff's statements concerning the intensity, persistence and limiting effects of her 6 symptoms were not entirely consistent with the medical evidence and other evidence in the 7 record. Tr. 7812–16. Plaintiff showed improvement with medication and did not comply 8 with recommended treatments. Tr. 7813–14. She quit smoking, started working at the 9 Bremerton shipyards, walked five times a week, and lost twenty pounds intentionally. Tr. 10 7814–16. Contrary to her claim of debilitating leg pain, her bone scans were normal, Tr. 11 7814, electromyography tests did not reveal neuropathy, and there was no objective 12 evidence of neuropathy otherwise, Tr. 7815. The ALJ also found Plaintiff made statements 13 to her healthcare providers that were inconsistent with her claims. Tr. 7816. 14 Plaintiff argues the ALJ erred because the reasons for rejecting Plaintiff's subjective 15 claims were not clear and convincing. ECF No. 9 at 15–20. Specifically, Plaintiff says 16 the ALJ erred by finding that a normal bone scan undermined Plaintiff's claims of leg 17 pain. Id. at 17. According to Plaintiff, a negative bone scan does not undermine Plaintiff's 18 claims because it supports a diagnosis of shin splints. Id. Plaintiff also argues the ALJ 19 erred by finding the normal electromyography results precluded a finding neuropathy. 20 Id. According to Plaintiff, electromyography tests show large fiber neuropathy, but not 21 small fiber neuropathy. Id. Therefore, the normal results did not preclude small fiber 22 neuropathy. Id at 17–18. Notably, the district court's previous order specifically stated, "the 23 ALJ erred in assessing Plaintiff's neuropathy and leg pain and migraine headaches as 24 nonsevere impairments." Tr. 7890. Nevertheless, the ALJ wrote after the remand that she 25 "cannot adopt the District Court's statement that 'neuropathy . . . caused more than minimal 26 functional limitations.'" Tr. 7807. Finally, Plaintiff argues the ALJ erred by discounting 27 Plaintiff's symptoms based on her mild activities and illusory improvement. ECF No. 9 28 at 18–20. 1 Defendant's only response to these arguments is that they are foreclosed by the law of 2 the case doctrine, which "'generally prohibits a court from considering an issue that has 3 already been decided by the same court or a higher court in the same case.'" ECF No. 11 4 at 2–3 (quoting Stacy v. Colvin, 825 F.3d 563, 567 (9th Cir. 2016)). 5 Defendant's argument is incorrect for the simple reason that these issues have not 6 already been decided. The district court did not previously decide the ALJ's rejection of 7 Plaintiff's symptom claims were legally sufficient. See Tr. 7893–95. While the district court 8 found "the ALJ reasonably relied on Plaintiff's gap in treatment to discount her mental health 9 complaints," Tr. 7894, it also found "that the ALJ erred in discounting Plaintiff's subjective 10 characterization of her symptoms based on Plaintiff's response to medication and her actions 11 in working and otherwise seeking employment." Tr. 7896 (footnote omitted). Contrary to 12 Defendant's characterization, the district court decided the ALJ's reasons for rejecting 13 Plaintiff's physical symptoms were inadequate. Compare ECF No. 11 at 2–3, with Tr. 7896. 14 Because Defendant's law-of-the-case argument is incorrect, and Defendant does not 15 otherwise defend the ALJ's decision, the Court must conclude that the ALJ erred in rejecting 16 Plaintiff's subjective symptom claims for the reasons discussed above. See Stacy, 825 F.3d 17 at 567. 18 Plaintiff asks the Court to remand for an award of benefits, ECF No. 9 at 21, but that 19 remedy is only appropriate if it is clear from the record that the claimant is disabled, see 20 Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1100–01 (9th Cir. 2014). That is 21 not the case here. The Court will remand this matter for additional proceedings and 22 explanation. See Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004). 23 (2) Plaintiff's Other Assignments of Error 24 Plaintiff also contends the ALJ erred by improperly evaluating medical opinion 25 evidence, failing to find Plaintiff disabled at step three, and conducting an inadequate 26 analysis at step five. ECF No. 9 at 11–15, 20–21. The analysis of these issues could be 27 impacted by the ALJ's reassessment of Plaintiff's subjective claims. Therefore, the ALJ 28 should reevaluate them on remand as well. 1 CONCLUSION 2 Having reviewed the record and the ALJ's findings, the Court finds th Commissioner's final decision is in error. The Court has reviewed the briefs and the file an 4|| is fully informed Accordingly, 5 IT IS ORDERED that: 6 1. Plaintiffs Brief, filed August 15, 2023, ECF No. 9, is GRANTED. 7 2. Defendant's Brief, filed September 14, 2023, ECF No. 11, is DENIED. 8 3. This matter is REMANDED to the Commissioner for additional proceeding consistent with this Order. 10 4. An application for attorney fees may be filed by separate motion. 11 The District Court Executive is directed to file this Order and provide copies t counsel. Judgment shall be entered for Plaintiff and the file shall be CLOSED. 13 DATED this 8th day of January, 2023. 14 . 15 L. D1. Aa — 16 WM. FREMMING NIELSEN 283 SENIOR UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28