Krigbaum v. Kijakazi

• Court: District Court, E.D. Washington
• Decided: August 5, 2022
• Docket: 4:20-cv-05142
• Status: Unknown

Opinion

1 EASTERU N. S D. I F SDI TLI RSE ITD CR TIIN C O TT F H C WEO AU SR HT I NGTON 2 Aug 05, 2022 3 SEAN F. MCAVOY, CLERK 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON

7 AMBER K., No. 4:20-cv-05142-SMJ

8 Plaintiff, ORDER GRANTING IN PART 9 PLAINTIFF’S MOTION FOR 10 v. SUMMARY JUDGMENT AND REMANDING FOR ADDITIONAL 11 KILOLO KIJAKAZI, PROCEEDINGS 12 ACTING COMMISSIONER OF SOCIAL SECURITY,1 13

14 Defendant.

16 17 Before the Court are the parties’ cross-motions for summary judgment. ECF 18 No. 17, 18. Attorney Kathryn Higgs represents Amber K. (Plaintiff); Special 19 Assistant United States Attorney Katherine Watson represents the Commissioner of 20 21 Social Security (Defendant). After reviewing the administrative record and the briefs 22 filed by the parties, the Court grants in part Plaintiff’s Motion for Summary 23 24 Judgment, denies Defendant’s Motion for Summary Judgment, and remands the 25

26 1 Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 27 2021. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Kilolo Kijakazi is substituted for Andrew M. Saul as the defendant in this suit. No further 28 action need be taken to continue this suit. See 42 U.S.C. § 405(g). matter to the Commissioner for additional proceedings pursuant to 42 U.S.C. § 1 2 405(g). 3 4 JURISDICTION 5 Plaintiff filed an application for Supplemental Security Income on March 5, 6 2018, alleging disability since April 13, 2016, due to back injury and neck injury. 7 8 Tr. 75-76. The application was denied initially and upon reconsideration. Tr. 105- 9 08, 114-16. An Administrative Law Judge (ALJ) held a hearing on October 7, 2019, 10 Tr. 33-73, and issued an unfavorable decision on October 23, 2019. Tr. 15-27. 11 12 Plaintiff requested review of the ALJ’s decision by the Appeals Council and the 13 Appeals Council denied the request for review on July 6, 2020. Tr. 1-5. The ALJ’s 14 15 October 2019 decision is the final decision of the Commissioner, which is appealable 16 to the district court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action for 17 judicial review on August 7, 2020. ECF No. 1. 18 19 STATEMENT OF FACTS 20 21 Plaintiff was born in 1983 and was 32 years old as of her alleged onset date. 22 Tr. 75. She has a high school diploma and has worked as a housekeeper and 23 24 caregiver, and in sales and grocery checking. Tr. 37-38, 60-66. She initially injured 25 her back in early 2016 while pushing a car and underwent surgery in April 2016. Tr. 26 349. She did not experience relief from surgery and continued to seek treatment for 27 28 neck and back pain, with radiation into her left leg. Her treatment has included physical therapy, medication, steroid injections, and use of a TENS unit. Treatment 1 2 has brought her only minimal relief. Tr. 365, 391, 670, 692-93, 762-63. 3 STANDARD OF REVIEW 4 5 The ALJ is responsible for determining credibility, resolving conflicts in 6 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 7 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 8 9 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 10 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only 11 12 if it is not supported by substantial evidence or if it is based on legal error. Tackett 13 v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as 14 being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put 15 16 another way, substantial evidence is such relevant evidence as a reasonable mind 17 might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 18 19 389, 401 (1971). If the evidence is susceptible to more than one rational 20 interpretation, the Court may not substitute its judgment for that of the ALJ. Tackett, 21 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595, 22 23 599 (9th Cir. 1999). If substantial evidence supports the administrative findings, or 24 if conflicting evidence supports a finding of either disability or non-disability, the 25 26 ALJ’s determination is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-1230 27 (9th Cir. 1987). Nevertheless, a decision supported by substantial evidence will be 28 set aside if the proper legal standards were not applied in weighing the evidence and 1 2 making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 3 432, 433 (9th Cir. 1988). 4 5 SEQUENTIAL EVALUATION PROCESS 6 The Commissioner has established a five-step sequential evaluation process 7 for determining whether a person is disabled. 20 C.F.R. § 416.920(a); Bowen v. 8 9 Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through four, the claimant bears 10 the burden of establishing a prima facie case of disability. Tackett, 180 F.3d at 1098- 11 12 1099. This burden is met once a claimant establishes that a physical or mental 13 impairment prevents the claimant from engaging in past relevant work. 20 C.F.R. § 14 416.920(a)(4). If a claimant cannot perform past relevant work, the ALJ proceeds to 15 16 step five, and the burden shifts to the Commissioner to show (1) the claimant can 17 make an adjustment to other work; and (2) the claimant can perform specific jobs 18 19 that exist in the national economy. Batson v. Commissioner of Social Sec. Admin., 20 359 F.3d 1190, 1193-1194 (9th Cir. 2004). If a claimant cannot make an adjustment 21 to other work in the national economy, the claimant will be found disabled. 20 C.F.R. 22 23 § 416.920(a)(4)(v). 24 ADMINISTRATIVE FINDINGS 25 26 On October 23, 2019, the ALJ issued a decision finding Plaintiff was not 27 disabled as defined in the Social Security Act. Tr. 15-27. 28 At step one, the ALJ found Plaintiff had not engaged in substantial gainful 1 2 activity since the application date. Tr. 17. 3 At step two, the ALJ determined Plaintiff had the following severe 4 5 impairments: cervical degenerative disc disease, lumbar degenerative disc disease, 6 left foot drop, obesity, and asthma. Id. 7 At step three, the ALJ found Plaintiff did not have an impairment or 8 9 combination of impairments that met or medically equaled the severity of one of the 10 listed impairments. Tr. 19-20. 11 12 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and found 13 she could perform a range of light work, with the following limitations: 14

15 The claimant could stand and/or walk up to one hour at a time for a total 16 of four hours in an eight-hour workday. She could occasionally perform 17 foot control operation with the left foot. She should never crouch, crawl, or climb ladders, ropes, or scaffolds. She could occasionally 18 stoop and kneel but less than occasionally climb ramps and/or stairs. 19 She should avoid all exposure to extreme temperatures, excessive vibrations, and hazards such as dangerous moving machinery and 20 unprotected heights as well as avoid occasional exposure to pulmonary 21 irritants such as smoke and dust.

22 Tr. 20. At step four, the ALJ found Plaintiff was unable to perform her past 23 24 relevant work as a housekeeper cleaner, child monitor, salesclerk, stores laborer, or 25 industrial truck operator. Tr. 25. 26 At step five the ALJ found that, considering Plaintiff’s age, education, work 27 28 experience and residual functional capacity, Plaintiff could perform jobs that existed in significant numbers in the national economy, specifically identifying the 1 2 representative occupations of marking clerk, routing clerk, and ticket seller. Tr. 25- 3 26. 4 5 The ALJ thus concluded Plaintiff was not under a disability within the 6 meaning of the Social Security Act at any time from the date the application was 7 filed through the date of the decision. Tr. 26-27. 8 9 ISSUES 10 The question presented is whether substantial evidence supports the ALJ’s 11 decision denying benefits and, if so, whether that decision is based on proper legal 12 13 standards. 14 Plaintiff contends the Commissioner erred by (1) improperly rejecting 15 Plaintiff’s symptom testimony; (2) improperly rejecting the opinions of treating and 16 17 examining doctors; and (3) formulating an incomplete residual functional capacity. 18 DISCUSSION 19 20 1. Plaintiff’s Subjective Statements 21 Plaintiff contends the ALJ erred by improperly rejecting her subjective 22 complaints. ECF No. 17 at 5-9. 23 24 It is the province of the ALJ to make determinations regarding a claimant’s 25 subjective statements. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 26 27 However, the ALJ’s findings must be supported by specific, cogent reasons. Rashad 28 v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Once the claimant produces 1 2 medical evidence of an underlying medical impairment, the ALJ may not discredit 3 testimony as to the severity of an impairment merely because it is unsupported by 4 5 medical evidence. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). Absent 6 affirmative evidence of malingering, the ALJ’s reasons for rejecting the claimant’s 7 testimony must be “specific, clear and convincing.” Smolen v. Chater, 80 F.3d 1273, 8 9 1281 (9th Cir. 1996); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996). “General 10 findings are insufficient: rather the ALJ must identify what testimony is not credible 11 12 and what evidence undermines the claimant’s complaints.” Lester, 81 F.3d at 834; 13 Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 14 The ALJ concluded Plaintiff’s medically determinable impairments could 15 16 reasonably be expected to cause the alleged symptoms but that Plaintiff’s statements 17 concerning the intensity, persistence and limiting effects of those symptoms were 18 19 not entirely consistent with the medical evidence and other evidence in the record. 20 Tr. 21. The ALJ found Plaintiff’s complaints were unsupported by the objective 21 evidence of record and inconsistent with Plaintiff’s activities. Tr. 21-23. 22 23 Plaintiff argues the ALJ’s rationale is insufficient, as the identified activities 24 are not inconsistent with Plaintiff’s allegations, and the lack of support from the 25 26 objective evidence is not enough on its own. ECF No. 17 at 5-9. Defendant argues 27 the ALJ appropriately considered evidence of poor effort, inconsistent presentation, 28 lack of follow through, conflicting doctors’ opinions and Plaintiff’s activities in 1 2 assessing the reliability of Plaintiff’s reports. ECF No. 18 at 2-9. 3 The Court finds the ALJ failed to offer clear and convincing reasons for 4 5 discounting Plaintiff’s reports. A claimant’s daily activities may support an adverse 6 credibility finding if the claimant’s activities contradict her other testimony. Orn v. 7 Astrue, 495 F.3d 625, 639 (9th Cir. 2007). However, the ALJ failed to identify any 8 9 activities that were inconsistent with Plaintiff’s reports. The record contains very 10 little evidence of Plaintiff engaging in household chores or running errands, and the 11 12 ALJ did not point to any childcare activities Plaintiff engaged in. Plaintiff testified 13 that household chores take her all day and she is wiped out afterward, that she sits 14 while doing any meal preparation, and she has assistance with grocery shopping. Tr. 15 16 51-52. The Ninth Circuit has repeatedly found that the ability to perform these kinds 17 of activities are not inconsistent with the inability to work: 18 19 We have repeatedly warned that ALJs must be especially cautious in concluding that daily activities are inconsistent with testimony about 20 pain, because impairments that would unquestionably preclude work 21 and all the pressures of a workplace environment will often be consistent with doing more than merely resting in bed all day. 22

23 Garrison v. Colvin, 759 F.3d 995, 1016 (9th Cir. 2014); Fair v. Bowen, 885 F.2d 24 597, 603 (9th Cir. 1989) (“[M]any home activities are not easily transferable to what 25 26 may be the more grueling environment of the workplace, where it might be 27 impossible to periodically rest or take medication.”). Because the ALJ did not 28 identify any activities that are inconsistent with Plaintiff’s allegations, this is not a 1 2 clear and convincing basis for discounting her subjective reports. 3 The only other rationale offered by the ALJ was the lack of support from the 4 5 objective evidence. An ALJ may cite inconsistencies between a claimant’s testimony 6 and the objective medical evidence in discounting the claimant’s symptom 7 statements. Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 8 9 2009). But this cannot be the only reason provided by the ALJ. See Lester, 81 F.3d 10 at 834 (the ALJ may not discredit the claimant’s testimony as to subjective 11 12 symptoms merely because they are unsupported by objective evidence). The ALJ 13 summarized the treatment records in chronological order but failed to identify any 14 specific conflicts other than Plaintiff not presenting to every appointment with back 15 16 and extremity issues. Tr. 21-23. The Court finds the fact that Plaintiff did not 17 complain about problems with her back and neck during a consultation for a 18 19 hysterectomy is an insufficient basis upon which to discount Plaintiff’s allegations. 20 Defendant argues that the ALJ also discounted Plaintiff’s subjective 21 statements based on evidence of poor effort and lack of follow-through with 22 23 treatment recommendations. ECF No. 18 at 3-6. The Court finds the ALJ did not 24 25 26 27 28 clearly link these factors to his assessment of Plaintiff’s subjective statements, and 1 2 simply mentioned the facts in his summary of the treatment record.2 3 On remand, the ALJ shall reconsider Plaintiff’s subjective testimony. 4 5 2. Medical Opinions 6 Plaintiff argues the ALJ erred in evaluating the medical opinion evidence. 7 8 ECF No. 17 at 9-12. 9 For claims filed on or after March 27, 2017, new regulations apply that change 10 the framework for how an ALJ must weigh medical opinion evidence. Revisions to 11 12 Rules Regarding the Evaluation of Medical Evidence, 2017 WL 168819, 82 Fed. 13 Reg. 5844 (Jan. 18, 2017); 20 C.F.R. § 416.920c. The new regulations provide the 14 15 ALJ will no longer give any specific evidentiary weight to medical opinions or prior 16 administrative medical findings, including those from treating medical sources. 20 17 C.F.R. § 416.920c(a). Instead, the ALJ will consider the persuasiveness of each 18 19 medical opinion and prior administrative medical finding, regardless of whether the 20 medical source is an Acceptable Medical Source. 20 C.F.R. § 416.920c(c). The ALJ 21 22 is required to consider multiple factors, including supportability, consistency, the 23 source’s relationship with the claimant, any specialization of the source, and other 24 25

26 2 Additionally, the fact that there was “no note of follow through” after Plaintiff’s 27 physical therapy visit in September 2019 is clearly explained by its proximity in time to the hearing. Tr. 1073 (physical therapy visit on September 24, 2019); Tr. 28 33 (hearing on October 7, 2019). factors (such as the source’s familiarity with other evidence in the file or an 1 2 understanding of Social Security’s disability program). Id. The regulations make 3 clear that the supportability and consistency of the opinion are the most important 4 5 factors, and the ALJ must articulate how they considered those factors in 6 determining the persuasiveness of each medical opinion or prior administrative 7 medical finding. 20 C.F.R. § 416.920a(b). The ALJ may explain how they 8 9 considered the other factors, but is not required to do so, except in cases where two 10 or more opinions are equally well-supported and consistent with the record. Id. 11 12 Supportability and consistency are further explained in the regulations: 13 (1) Supportability. The more relevant the objective medical evidence 14 and supporting explanations presented by a medical source are to 15 support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior 16 administrative medical finding(s) will be. 17 18 (2) Consistency. The more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other 19 medical sources and nonmedical sources in the claim, the more 20 persuasive the medical opinion(s) or prior administrative medical finding(s) will be. 21

22 20 C.F.R. § 416.920c(c). The Ninth Circuit has additionally held that the new 23 regulatory framework displaces the longstanding case law requiring an ALJ to 24 25 provide “specific and legitimate” or “clear and convincing” reasons for rejecting a 26 treating or examining doctor’s opinion. Woods v. Kijakazi, 32 F.4th 785 (9th Cir. 27 2022). 28 a. ARNP Kelli Campbell 1 2 Plaintiff’s primary care provider, Kelli Campbell, completed three WorkFirst 3 forms for DSHS, one in October of 2017, another in February of 2018, and the last 4 5 in March of 2019. Tr. 307-09, 315-17, 677-79. In each form, Ms. Campbell noted 6 Plaintiff’s issues with pain and stated she was limited to 1-10 hours of work-related 7 activity per week, needed frequent position changes, and was limited to sedentary 8 9 work. Id. 10 The ALJ found these opinions unpersuasive, finding them to be inconsistent 11 12 with the objective record, noting evidence of leg weakness, some full strength, few 13 complaints of headaches, and normal mental status exams. Tr. 25. 14 The Court finds the ALJ’s analysis is insufficient. The ALJ only considered 15 16 the consistency factor and failed to discuss supportability, as required by the revised 17 regulations. 20 C.F.R. § 416.920a(b). Furthermore, the ALJ failed to explain how 18 19 the cited records demonstrate any inconsistency with Ms. Campbell’s opinions. It is 20 unclear how evidence regarding headaches or mental status exams conflicts with Ms. 21 Campbell’s opinion about Plaintiff’s physical pain and corresponding physical 22 23 limitations. 24 On remand the ALJ will reconsider the persuasiveness of Ms. Campbell’s 25 26 opinions, specifically addressing the factors of supportability and consistency. 27

28 b. Dr. Turner and Dr. Thompson 1 2 Plaintiff next argues that the ALJ erred in rejecting the testimony from the 3 medical expert, Dr. Thompson, regarding absences and breaks, and in failing to 4 5 discuss evidence from Dr. Turner that indicated difficulty with standing and 6 walking. ECF No. 17 at 11-12. Defendant asserts neither of these arguments 7 identifies clear limitations that the ALJ was required to specifically discuss. ECF 8 9 No. 18 at 13-14, 16-18. 10 The Court finds Plaintiff did not identify any opinion evidence that the ALJ 11 12 failed to discuss or erred in disregarding. The revised regulations define a medical 13 opinion as a statement from a medical source about what a claimant can still do 14 despite their impairments. 20 C.F.R. § 416.913. Dr. Thompson testified that he 15 16 thought it was likely that Plaintiff would need more breaks than a normal worker 17 and would have absences due to her impairments, but that he could not objectively 18 19 estimate how many. Tr. 47-48. Dr. Turner performed an exam and requested a 20 colleague review Plaintiff’s case but did not assess any functional limits. Tr. 460, 21 464. Therefore, these were not “medical opinions” as defined by the regulations and 22 23 the ALJ did not err in rejecting this testimony. 24 3. RFC 25 26 Plaintiff argues the ALJ erred in formulating the RFC as it did not account for 27 all of Plaintiff’s limitations. ECF No. 17 at 12-17. This argument largely reiterates 28 the arguments discussed above. On remand, the ALJ will reconsider the evidence 1 2 and reformulate the RFC as needed. 3 CONCLUSION 4 5 Plaintiff argues the ALJ’s decision should be reversed and remanded for the 6 payment of benefits. The Court has the discretion to remand the case for additional 7 evidence and findings or to award benefits. Smolen v. Chater, 80 F.3d 1273, 1292 8 9 (9th Cir. 1996). The Court may award benefits if the record is fully developed and 10 further administrative proceedings would serve no useful purpose. Id. Remand is 11 12 appropriate when additional administrative proceedings could remedy defects. 13 Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989). In this case, the Court finds 14 that further development is necessary and declines to remand for payment of benefits 15 16 without further proceedings. 17 The ALJ’s decision is not supported by substantial evidence. On remand, the 18 19 ALJ shall reevaluate Plaintiff’s subjective statements and the medical evidence of 20 record, making findings on each of the five steps of the sequential evaluation 21 process, and take into consideration any other evidence or testimony relevant to 22 23 Plaintiff’s disability claim. 24 // 25 26 // 27 // 28 1 Accordingly, IT IS ORDERED: 2 1. Plaintiff's Motion for Summary Judgment, ECF No. 17, is GRANTED 3 IN PART. 4 5 2. Defendant’s Motion for Summary Judgment, ECF No. 18, is DENIED. 6 3. The matter is REMANDED to the Commissioner for additional 7 8 proceedings consistent with this Order. 9 4. An application for attorney fees may be filed by separate motion within 10 30 days from the date of this Order. 12 5. The Clerk’s Office is directed to enter JUDGMENT for Plaintiff and 13 CLOSE this file. 14 15 IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order and 16 provide copies to all counsel. 17 8 DATED this 5" day of August 2022. 19 ~ 50 ain. te. OSPF 21 SALVADOR MENDOZASIR. 02 United States District Judge 23 24 25 26 27 28