Koch v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: November 8, 2021
• Docket: 3:20-cv-05614
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 RICHARD F.K., Case No. 3:20-cv-05614-TLF 7 Plaintiff, v. ORDER REVERSING AND 8 REMANDING DEFENDANT’S COMMISSIONER OF SOCIAL DECISION TO DENY BENEFITS 9 SECURITY, 10 Defendant. 11 Plaintiff has brought this matter for judicial review of defendant’s denial of his 12 application for disability insurance benefits. 13 The parties have consented to have this matter heard by the undersigned 14 Magistrate Judge. 28 U.S.C. § 636(c); Federal Rule of Civil Procedure 73; Local Rule 15 MJR 13. 16 I. ISSUES FOR REVIEW 17 1. Did the ALJ Err at Step Two of the Sequential Evaluation Process? 18 II. BACKGROUND 19 On September 22, 2017, Plaintiff filed an application for DIB, alleging therein a 20 disability onset date of November 5, 2016, although he later amended this onset date to 21 November 16, 2019. Administrative Record (“AR”) 177, 180, 195. Plaintiff’s application 22 for DIB was denied upon official review and upon reconsideration. AR 108, 116. A 23 hearing was held before ALJ Rebecca L. Jones on March 18, 2019. AR 30. On March 24 1 27, 2019, the ALJ issued a decision finding that Plaintiff was not disabled. AR 24. On 2 April 21, 2020, the Social Security Appeals Council denied Plaintiff’s request for review. 3 AR 1–4. 4 III. STANDARD OF REVIEW

5 Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s 6 denial of Social Security benefits if the ALJ’s findings are based on legal error or not 7 supported by substantial evidence in the record as a whole. Revels v. Berryhill, 874 8 F.3d 648, 654 (9th Cir. 2017). Substantial evidence is “such relevant evidence as a 9 reasonable mind might accept as adequate to support a conclusion.” Biestek v. 10 Berryhill, 139 S. Ct. 1148, 1154 (2019) (internal citations omitted). 11 IV. DISCUSSION 12 In this case, the ALJ found that Plaintiff had the medically determinable 13 impairments of degenerative disc disease of the lumbar and cervical spine, 14 degenerative joint disease of the right shoulder, obstructive sleep apnea, essential

15 hypertension, gastroesophageal reflux disease, and asthma. AR 18. The ALJ did not 16 find that Plaintiff had any severe, medically determinable impairment or combination of 17 impairments that would significantly limit his ability to do work-related tasks and could 18 be expected to last twelve or more months. AR 19. 19 Thus, the ALJ determined that Plaintiff was not disabled and did not proceed 20 beyond step two of the five-step sequential evaluation process. AR 24. The ALJ 21 reached this determination by giving little weight to Plaintiff’ subjective symptom 22 testimony and the opinions of consultative medical examiner Gary Gaffield, D.O., as 23 well as non-examining medical consultants Charles Wolfe, M.D., and Guillermo Rubio,

24 M.D. AR 20–24. 1 2 A. Whether the ALJ’s Step Two Finding was Proper 3 The Commissioner uses a five-step sequential evaluation process to determine if 4 a claimant is disabled. 20 C.F.R. § 416.920. At step two of the sequential evaluation,

5 the ALJ must determine if a claimant has a “severe medically determinable physical 6 or mental impairment.” 20 C.F.R. § 404.1520, § 416.920. A medically determinable 7 impairment is one which results from “anatomical, physiological, or psychological 8 abnormalities that can be shown by medically acceptable clinical and laboratory 9 diagnostic techniques[.]” Social Security Ruling (“SSR”) 16-3p, 2017 WL 5180304, at *3. 10 A medically determinable impairment is considered “severe” if it “significantly limits [a 11 claimant’s] physical or mental ability to do basic work activities. . . .” 20 C.F.R. §§ 12 404.1520(a)(4)(iii) & (c), 416.920(a)(4)(iii) & (c). 13 Basic work activities are those “abilities and aptitudes necessary to do most 14 jobs,” including, for example, “walking, standing, sitting, lifting, pushing, pulling,

15 reaching, carrying or handling; capacities for seeing, hearing and speaking; 16 understanding, carrying out, and remembering simple instructions; use of judgment; 17 responding appropriately to supervision, co-workers and usual work situations; and 18 dealing with changes in a routine work setting.” 20 C.F.R. §§ 404.1521(b), 416.921(b); 19 SSR 85-28, 1985 WL 56856, at *3. 20 The step two inquiry, however, is merely a threshold determination as to whether 21 a claimant has raised a “prima facie case of a disability.” Hoopai v. Astrue, 499 F.3d 22 1071, 1076 (9th Cir. 2007); see also Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 23 1996) (noting the step two determination is a de minimis screening device used to

24 1 dispose of groundless claims). “Ample authority cautions against a determination of 2 nondisability at step two.” Ortiz v. Commissioner of Social Sec., 425 Fed.Appx. 653, 655 3 (9th Cir. 2011) (citing Bowen v. Yuckert, 482 U.S. 137, 153 (1987)); Webb v. Barnhart, 4 433 F.3d 683, 686 (9th Cir.2005), Smolen, 80 F.3d at 1290. An impairment or

5 combination of impairments may be found “not severe only if the evidence establishes a 6 slight abnormality that has no more than a minimal effect on an individual’s ability to 7 work.” Smolen, 80 F.3d at 1290. “If an adjudicator is unable to determine clearly the 8 effect of an impairment or combination of impairments on the individual's ability to do 9 basic work activities, the sequential evaluation should not end with [step two.]” SSR 85- 10 28, 1985 WL 56856, at *4. 11 In Webb v. Barnhart, the Ninth Circuit articulated a test to determine whether an 12 ALJ properly finds a claimant to be not disabled at step two. First, an ALJ must find the 13 medical evidence of record “clearly establish[es]” a claimant did not have a medically 14 severe impairment or combination of impairments. Webb, 433 F.3d at 686–87. Second,

15 an ALJ must support this finding with substantial evidence. Id. 16 Here, Plaintiff submitted evidence establishing he had the medically determinable 17 impairment of right shoulder degenerative joint disease since at least 2016. AR 428. 18 Among the evidence Plaintiff submitted were the medical opinions of Gary Gaffield, 19 D.O., and notes from Plaintiff’s treating medical sources at Madigan Army Medical 20 Center. See, e.g. AR 421–90, 498–506. 21 Dr. Gaffield reviewed Plaintiff’s orthopedic treatment records and administered 22 his own physical examination in addition to interviewing Plaintiff about his medical 23 history, and based upon this evaluation, Dr. Gaffield diagnosed Plaintiff with

24 1 1. Right shoulder weakness with marked restricted motion and history of a rotator cuff tear. It does not impact his grip or dexterity. 2 2. Mild restricted cervical motion with a history of underlying fractures. No 3 radiculopathies.

4 3. Slight weakness of the right knee without restricted motion with a history of ACL tear. 5 4. Asthma by report. He carries medications. 6 5. Obstructive sleep apnea using a CPAP machine with good results. 7 AR 505. 8 Based on his assessment of these impairments, Dr. Gaffield opined that Plaintiff 9 would be limited to lifting not more than 20 pounds occasionally and 10 pounds 10 frequently, could perform postural activities occasionally, could not reach or work 11 overhead for prolonged periods of time, and should avoid working at heights, operating 12 heavy equipment, navigating scaffolding or irregular surfaces, or working around 13 temperature extremes, gases, chemicals or fumes. AR 505–06. These reports were 14 consistent with Plaintiff’s subjective testimony as well as longitudinal history of his 15 shoulder problems. See, e.g., AR 50–51, 53, 56–58, 428, 499–500. 16 Although these reports were contradicted by other evidence upon which the ALJ 17 relied, the conflict and ambiguity in the record demonstrates that Plaintiff’s claim is at 18 least debatable; thus, it has not been clearly established that Plaintiff’s condition is non- 19 severe. Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir.2005); see Franklin v. Astrue, 20 2012 WL 3059407, at *3 (W.D. Wash. 2012); compare Ukolov v. Barnhart, 420 F.3d 21 1002 (9th Cir. 2005) (finding claimant offered no objective medical evidence in support 22 of claim that medically determinable impairments were severe). 23 24 1 The ALJ found Plaintiff’s complaints regarding his shoulder to be inconsistent 2 with findings that this impairment “is adequately treated with steroid injection and results 3 in no significant limitation to [Plaintiff]’s ability to perform basic work activities.” AR 21. 4 As in Webb, this reason -- when balanced against the contemporaneous observations

5 of Plaintiff’s doctors, objective tests, and Plaintiff’s subjective complaints – is not 6 supported by substantial evidence. 7 The ALJ’s summary of this evidence includes Plaintiff’s reports that steroid 8 injections provided some relief from his shoulder pain. However, the persistent shoulder 9 impairment is well-documented through Plaintiff’s testimony and objective medical 10 evidence, including x-rays and physical exams. See AR 44–45 (Plaintiff needed a 11 second person for a one-person lifting task), 50–51 (steroid injections do not last full 12 three to four months, but provide “50 percent” pain relief in first month); 56 (Plaintiff 13 testified that he could not lift more than 20 pounds at a time), 499 (x-ray showing “[m]ild 14 acromioclavicular arthritis” in right shoulder). The evidence cited by the ALJ does not

15 contradict Plaintiff’s testimony. “That a person who suffers from severe [symptoms] 16 makes some improvement does not mean that the person's impairments no longer 17 seriously affect her ability to function in a workplace.” Holohan v. Massanari, 246 F.3d 18 1195, 1205 (9th Cir. 2001). 19 As for the medical evidence, the ALJ found that Dr. Gaffield’s opinion on 20 Plaintiff’s limitations had no objective support. The ALJ did contrast Dr. Gaffield’s 21 findings to the absence of comparable findings by his medical providers. Tr. 23. But this 22 overlooks the fact that Plaintiff’s medical providers did not conduct examinations 23 comparable to that provided by Dr. Gaffield. The ALJ also noted that Plaintiff

24 1 “consistently obtained significant relief from injections,” Tr. 23. But the same records 2 documenting relief also show that Plaintiff consistently needed injections in his shoulder 3 for relief. Tr. 608 (noting shoulder pain was “long standing” as of June 2016); 609 4 (November 2017 injection); 607 (June 2018 injection); 601–02 (November 2018

5 injection); Tr. 600 (February 2019 injection). 6 In addition, both state agency physicians echoed most of Dr. Gaffield’s 7 recommendations. At the initial level, Dr. Charles Wolfe indicated that Plaintiff would be 8 limited to light work, with limited push/pull in the upper and lower extremities; that he 9 would be capable of only occasional postural activities, except for balancing (unlimited); 10 that he would be limited in overhead work with his right upper extremity; and that he 11 should avoid concentrated exposure to fumes, odors, dust, gases, poor ventilation, and 12 hazards. Tr. 89–91. Dr. Wolfe explained the factual basis of his findings, relying on the 13 record as it stood, as well as Dr. Gaffield’s exam. Tr. 86–87. At the reconsideration 14 level, Dr. Guillermo Rubio concurred with Dr. Wolfe’s opinion, relying on essentially the

15 same evidence. Tr. 99, 101–03. 16 In any event, as in Webb, the issues the ALJ identified with Drs. Gaffield’s, 17 Rubio’s, and Wolfe’s opinions are not “sufficient to doom [Plaintiff’s] claim as groundless 18 under the de minimis standard of step two.” Webb, 433 F.3d at 687. Drs. Gaffield’s, 19 Rubio’s and Wolfe’s reports are not only consistent with Plaintiff’s complaints, but are 20 also supported by objective medical evidence. See AR 82–93, 95–105, 499–505. This 21 evidence is sufficient for Plaintiff to have met his burden to present evidence of a severe 22 impairment. See, e.g., Webb, 433 F.3d at 687; Ortiz, 425 Fed.Appx. at 655; Franklin, 23 2012 WL 3059407, at *3.

24 1 The ALJ lacked substantial evidence to find the record clearly established 2 Plaintiff did not have a medically severe impairment. Thus, the ALJ committed harmful 3 error by ending the sequential evaluation at step two. 4 2. Remand for Further Proceedings

5 The Court may remand a case “either for additional evidence and findings or to 6 award benefits.” Smolen, 80 F.3d at 1292. Generally, when the Court reverses an ALJ’s 7 decision, “the proper course, except in rare circumstances, is to remand to the agency 8 for additional investigation or explanation.” Benecke v. Barnhart, 379 F.3d 587, 595 (9th 9 Cir. 2004) (citations omitted). On remand the ALJ must re-evaluate the medical opinion 10 evidence, the Plaintiff’s statements, and lay witness statements. See supra Section A. 11 The lack of findings at steps three, four, and five of the sequential evaluation are 12 outstanding issues requiring resolution before a disability determination can be properly 13 made. Therefore, a remand for further proceedings is the appropriate remedy. 14 CONCLUSION

15 Based on the foregoing discussion, the Court finds the ALJ erred when she 16 determined plaintiff to be not disabled. Defendant’s decision to deny benefits therefore 17 is REVERSED and this matter is REMANDED for further administrative proceedings. 18 The ALJ is directed to: offer Plaintiff an opportunity for another hearing; further evaluate 19 the medical opinions and obtain additional medical evidence if an expansion of the 20 record would be useful; further evaluate Plaintiff’s functional capacity, including ordering 21 an examination if necessary; re-evaluate Plaintiff’s testimony and subjective statements 22 about symptoms; and if necessary, take vocational evidence to evaluate Plaintiff’s 23 residual functional capacity and resolve any apparent conflicts between the vocational

24 expert’s testimony and the Dictionary of Occupational Titles; and, if step five is reached, 1 make findings at step five as to whether Plaintiff may perform other jobs that exist in 2 significant numbers in the national economy. 3 Dated this 8th day of November, 2021. 4

5 A 6 Theresa L. Fricke 7 United States Magistrate Judge

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