Larimer v. O'Malley

• Court: District Court, E.D. Washington
• Decided: December 29, 2022
• Docket: 1:22-cv-03005
• Status: Unknown

Opinion

1 Dec 29, 2022 SEAN F. MCAVOY, CLERK 2

3 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 5

6 KELLIE L.,1 No. 4:22-cv-3005-EFS

7 Plaintiff, ORDER GRANTING PLAINTIFF’S SUMMARY-JUDGMENT MOTION, 8 v. DENYING DEFENDANT’S SUMMARY-JUDGMENT MOTION, 9 KILOLO KIJAKAZI, Acting AND REMANDING FOR FURTHER Commissioner of Social Security, PROCEEDINGS 10

Defendant. 11

12 Plaintiff Kellie L. appeals the denial of benefits by the Administrative Law 13 Judge (ALJ). Because the record lacks substantial evidence to support the ALJ’s 14 medium-work residual functional capacity (RFC), this matter is remanded for 15 further proceedings. 16 I. Five-Step Disability Determination 17 A five-step evaluation determines whether a claimant is disabled. Step one 18 assesses whether the claimant is engaged in substantial gainful activity.2 Step two 19

20 1 For privacy reasons, Plaintiff is referred to by first name and last initial, as 21 claimant, or as Plaintiff. See LCivR 5.2(c). 22 2 20 C.F.R. § 416.920(a)(4)(i), (b). 23 1 assesses whether the claimant has a medically severe impairment or combination 2 of impairments that significantly limit the claimant’s physical or mental ability to 3 do basic work activities.3 Step three compares the claimant’s impairment or

4 combination of impairments to several recognized by the Commissioner to be so 5 severe as to preclude substantial gainful activity.4 Step four assesses whether an 6 impairment prevents the claimant from performing work she performed in the past 7 by determining the claimant’s residual functional capacity (RFC).5 Step five 8 assesses whether the claimant can perform other substantial gainful work—work 9 that exists in significant numbers in the national economy—considering the

10 claimant’s RFC, age, education, and work experience.6 11 II. Background 12 In 2019, when Plaintiff was 57, she filed a Title 16 application7 alleging 13 disability because of chronic pain in her joints, fibromyalgia, chronic migraines, 14 agoraphobia, panic attacks, posttraumatic stress disorder (PTSD), anxiety attacks, 15

16 3 20 C.F.R. § 416.920(a)(4)(ii), (c). 17 4 Id. § 416.920(a)(4)(iii), (d). 18 5 Id. §, 416.920(a)(4)(iv). 19 6 Id. § 416.920(a)(4)(v), (g). 20 7 Plaintiff previously filed Title 2 and 16 disability applications in February 2016. 21 The prior applications were denied, with the ALJ’s denial upheld by the district 22 court. AR 75–96; EDWA Case No. 1:19-cv-3091-FVS. 23 1 and sciatic pain.8 After the agency denied her application initially and on 2 reconsideration, Plaintiff requested a hearing before an ALJ.9 3 In December 2020, ALJ Glenn Meyers held a telephonic hearing, during

4 which Plaintiff and a vocational expert testified.10 Plaintiff testified that she cries 5 often, gets nervous around people, and has such bad anxiety that she puts on 6 glasses and a hat to walk to the mailbox and she goes grocery shopping at times 7 that she believes less people will be present.11 She believes she began experiencing 8 her mental-health symptoms after her mom died, and she experiences 9 hallucinations at night in which she sees her mom or other dead family members.12

10 Plaintiff reported a short attention span that does not allow her to watch a 2-hour 11 movie without taking breaks, that she has been taking opiate-based pain 12 medications for a long time, and that working fulltime would hurt her back.13 13 After the hearing, the ALJ denied Plaintiff’s disability application.14 As to 14 the sequential disability analysis, the ALJ found: 15

16 8 AR 209–14, 254. 17 9 AR 131–55. 18 10 AR 38–74. 19 11 AR 57, 59, 68. 20 12 AR 58–59. 21 13 AR 50–51, 62, 64. 22 14 AR–33. 23 1  Step one: Plaintiff had not engaged in substantial gainful activity 2 since May 20, 2019, the application date. 3  Step two: Plaintiff had the following medically determinable severe

4 impairments: degenerative disc disease (DDD; lumbar and cervical), 5 depressive disorder, anxiety disorder, personality disorder, and PTSD. 6  Step three: Plaintiff did not have an impairment or combination of 7 impairments that met or medically equaled the severity of one of the 8 listed impairments. 9  RFC: Plaintiff had the RFC to perform medium work with the

10 following limitations: 11 she can frequently balance, stoop, kneel, and crouch; she can never crawl or climb; she must avoid concentrated exposure 12 to hazards and vibration; she can perform simple routine tasks and follow short simple instructions; she can do work 13 that needs little or no judgment; she can perform simple duties that can be learned on the job in a short period; she 14 requires a work environment that is predictable and with few setting changes; she can work in proximity to coworkers 15 but not in a cooperative or team effort; she requires a work environment that has no more than superficial interactions 16 with coworkers; she requires a work environment without public contact; and requires a work environ[ment] with 17 occasional supervisor contact.

18  Step four: Plaintiff was not capable of performing past relevant work. 19  Step five: considering Plaintiff’s RFC, age, education, and work 20 history, Plaintiff could perform work that existed in significant 21 22 23 1 numbers in the national economy, such as janitor, laundry worker, 2 and hand packager.15 3 In reaching his decision, the ALJ found the examining opinions of Kent

4 Reade, Ph.D., and Patrick Metoyer, Ph.D., unpersuasive, and the reviewing 5 opinions of JD Fitterer, M.D., and Howard Platter, M.D., unpersuasive.16 The ALJ 6 also mentioned that he found Gary Nelson, Ph.D.’s examining opinion 7 unpersuasive but in discussing Dr. Nelson’s opinion mistakenly referred to 8 Dr. Fitterer and Dr. Platter instead of Dr. Nelson.17 The ALJ also mentioned a 9 largely blank Physical Functional Evaluation form that was not completed by

10 treating provider Angela Bosma, PA-C.18 And the ALJ found Plaintiff’s medically 11 determinable impairments could reasonably be expected to cause some of the 12 alleged symptoms, but her statements concerning the intensity, persistence, and 13 limiting effects of those symptoms were not consistent with the medical evidence 14 and other evidence.19 15 16

18 15 AR 15–29. 19 16 AR 25–26. 20 17 AR 25. 21 18 AR 26–27, 637–39. 22 19 AR 20–25. 23 1 Plaintiff requested review of the ALJ’s decision by the Appeals Council, 2 which denied review.20 Plaintiff timely appealed to the Court. 3 III. Standard of Review

4 A district court’s review of the Commissioner’s final decision is limited.21 The 5 Commissioner’s decision is set aside “only if it is not supported by substantial 6 evidence or is based on legal error.”22 Substantial evidence is “more than a mere 7 scintilla but less than a preponderance; it is such relevant evidence as a reasonable 8 mind might accept as adequate to support a conclusion.”23 Because it is the role of 9 the ALJ to weigh conflicting evidence, the Court upholds the ALJ’s findings “if they

10 are supported by inferences reasonably drawn from the record.”24 Further, the 11

12 20 AR 1–6. 13 21 42 U.S.C. § 405(g). 14 22 Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). 15 23 Id. at 1159 (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)). 16 24 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). See also Lingenfelter v. 17 Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (The court “must consider the entire 18 record as a whole, weighing both the evidence that supports and the evidence that 19 detracts from the Commissioner's conclusion,” not simply the evidence cited by the 20 ALJ or the parties.) (cleaned up); Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998) 21 (“An ALJ’s failure to cite specific evidence does not indicate that such evidence was 22 not considered[.]”). 23 1 Court may not reverse an ALJ decision due to a harmless error—one that “is 2 inconsequential to the ultimate nondisability determination.”25 3 IV. Analysis

4 A. Chavez’s presumption of continuing nondisability does not apply. 5 The Commissioner argues that the prior unfavorable ALJ decision from 2018 6 creates a presumption of continuing non-disability that supports ALJ Meyer’s at- 7 issue RFC, particularly as to the medium-work limitation. However, ALJ Meyers 8 stated and found: 9 The prior unfavorable May 29, 2018 decision creates a presumption of continuing non-disability (Chavez v. Bowen, 844 F.2d 691 (9th Cir. 10 1988); Acquiescence Ruling 97–499). I find that the presumption is rebutted because the mental regulations have changed. 11 The ALJ then analyzed anew Plaintiff’s mental and physical impairments. 12 The presumption of continuing nondisability was rebutted as to all aspects of 13 the prior RFC, including the medium-work assessment. Therefore, given the ALJ’s 14 broad rebutted-presumption finding and new analysis as to all of Plaintiff’s 15 impairments, the Court may not limit the ALJ’s finding such that the presumption 16 was rebutted to only the nonexertional-RFC limitations, as the Commissioner 17 proposes. 18 B. The medium-work RFC is not supported by substantial evidence. 19 Plaintiff argues the medium-work RFC is not supported by substantial 20 evidence because the ALJ committed error when analyzing the physical medical 21

22 25 Molina, 674 F.3d at 1115 (cleaned up). 23 1 opinions and by failing to develop the record. The Court agrees—the medium-work 2 RFC is not supported by substantial evidence. 3 1. Dr. Fitterer and Dr. Platter

4 The only completed medical opinions pertaining to Plaintiff’s physical 5 functioning were reviewing opinions by Dr. Fitterer and Dr. Platter. In 2019, on 6 the initial Disability Determination Explanation, Dr. Fitterer found that Plaintiff 7 had severe DDD (disorders of the back, discogenic and degenerative) and obesity.26 8 Dr. Fitterer also stated: 9 The current medical evidence is inadequate to assess the current nature and severity of claimant’s impairments. Claimant failed to 10 attend consultative exams despite the assistance of counsel. The evidence is insufficient due to lack of cooperation. These findings 11 complete the medical portion of the disability determination.27 Dr. Fitterer stated that a physical consultative examination (CE) was required.28 12 13

14 26 AR 111. 15 27 AR 111. See also Program Operations Manual System (POMS) DI 23007.015 16 (When assessing the RFC, the consultant is to “[o]nly impose limitations supported 17 by the evidence in the file. When the evidence does not support any limitations, do 18 not assess any. The consultant must indicate in the RFC that the evidence in the 19 file is insufficient to rate limitations on a particular impairment, symptoms, or 20 alleged limitations because the evidence necessary for a full medical evaluation is 21 not available.”). 22 28 AR 109. 23 1 The initial Disability Determination Explanation also summarized the 2 contacts between the agency and Plaintiff as to scheduling and attending the 3 previously scheduled CEs.29 This summary indicated that an agency representative

4 spoke with Plaintiff about the CE process and later confirmed that Plaintiff would 5 attend the CE and did not need a ride.30 When the agency called to again confirm 6 the CE, Plaintiff said she “was ill and unable to attend the exam” and requested 7 that the CE be rescheduled.31 Later Plaintiff confirmed she would attend the 8 rescheduled CE on August 1, 2019, but on the day of the CE, she called the agency 9 and reported that “her anxiety was too high to attend the exam.”32 The agency

10 noted, “Unfortunately, this is the second broken exam and insufficient reason to 11 reschedule.”33 12 Following issuance of Dr. Fitterer’s opinion, and before Dr. Platter reviewed 13 the record, another CE was scheduled for December 5, 2019. The record reflects 14 that Plaintiff was a “no show” for that CE.34 15 16

17 29 AR 110. 18 30 AR 110. 19 31 AR 110. 20 32 AR 110, 309. 21 33 AR 110. 22 34 AR 357. 23 1 In January 2020, on the reconsideration Disability Determination 2 Explanation (referred to as “Reconsideration Explanation”), Dr. Platter agreed that 3 Plaintiff had severe physical impairments of DDD and obesity and that the

4 evidence as to Plaintiff’s physical impairments was not sufficient to support a 5 decision on the disability claim.35 This insufficiency of the evidence was due in part 6 to Plaintiff forgetting to attend the physical CE (PCE) scheduled and confirmed for 7 December 5. The Reconsideration Explanation stated that this excuse was “[n]ot 8 considered good cause for reschedule since confirmation was provided.”36 The 9 Analysis section of the Reconsideration Explanation repeats that Plaintiff:

10 was scheduled to attend a PCE, confirmed by rep that clmt would attend exam and then failed PCE stating she forgot, not good cause 11 for reschedule of physical exam. Overall evidence in file insufficient based on inability to assess physical impairments and how they 12 impact her functioning.37

13 The Reconsideration Explanation also mentions that Plaintiff drove herself to her 14 psychological CE with Dr. Metoyer on January 20, 2020.38 15 These were the only medical statements pertaining to Plaintiff’s physical 16 functioning. Although the record contains a Physical Functional Evaluation form 17 with the name and contact information for Plaintiff’s primary care provider, 18

19 35 AR 121, 123. 20 36 AR 121–22. 21 37 AR 122–23. 22 38 AR 122. 23 1 PA-C Bosma, this form is otherwise blank.39 2 2. Analysis as to Medium-Work RFC 3 Like Dr. Fitterer and Dr. Platter, the ALJ found that Plaintiff had a severe

4 impairment of DDD (lumbar and cervical).40 However, the ALJ found unpersuasive 5 Dr. Fitterer’s and Dr. Platter’s opinions that a determination could not be made as 6 to Plaintiff’s physical functioning because 1) the doctors did not have an 7 opportunity to examine Plaintiff or review the updated record, and 2): 8 there is sufficient evidence to evaluate the claim to include, for example, largely normal findings on physical examinations such as a 9 full range of motion in her musculoskeletal system, a normal unremarkable back, and a normal gait; the claimant’s generally 10 benign presentation; and evidence that treatment has been effective or does not cause unpleasant side effects.41 11 The ALJ then interpreted the medical evidence as permitting Plaintiff to perform 12 medium work with postural limitations.42 13 14

15 39 The ALJ stated, “In June 2020, Angela Bosma, M.D., a treating provider, signed 16 a physical function evaluation. However, the submitted form was not completed, 17 and it did not otherwise identify any limitations.” AR 26. This form, however, does 18 not contain PA-C Bosma’s signature but rather simply contains basic contact 19 information. 20 40 AR 18. 21 41 AR 25. 22 42 AR 19. 23 1 Plaintiff argues that because there was no medical opinion indicating she 2 had the functional ability to perform medium work, the ALJ was “playing doctor” 3 by crafting an RFC based simply on interpreting raw medical data rather than

4 assessing whether opined medical limitations were supported by the record.43 5 It is the ALJ’s responsibility to translate and incorporate “clinical findings 6 into a succinct RFC.”44 The regulation regarding an RFC determination provides: 7 We will assess your residual functional capacity based on all of the relevant medical and other evidence. In general, you are responsible 8 for providing the evidence we will use to make a finding about your residual functional capacity. However, before we make a 9 determination that you are not disabled, we are responsible for developing your complete medical history, including arranging for a 10 consultative examination(s) if necessary, and making every reasonable effort to help you get medical reports from your own 11 medical sources. We will consider any statements about what you can still do that have been provided by medical sources, whether or not 12 they are based on formal medical examinations. We will also consider descriptions and observations of your limitations from your 13

14 43 ECF No. 11 (relying on Padilla v. Astrue, 541 F. Supp. 2d 1102, 1106 (C.D. Cal. 15 2008)). 16 44 Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1005–06 (9th Cir. 2015) 17 (analyzing whether the ALJ properly incorporated specific “imperatives” about the 18 claimant’s limitations rather than mere recommendations); Stubbs-Danielson v. 19 Astrue, 539 F.3d 1169, 1174–75 (9th Cir. 2008) (discussing whether the ALJ 20 properly incorporated the limited identified by the physicians); see also Social Sec. 21 Rlg. (SSR) 96-8p: Policy Interpretation Ruling Titles II and XVI: Assessing RFC in 22 Initial Claims. 23 1 impairment(s), including limitations that result from your symptoms, such as pain, provided by you, your family, neighbors, friends, or other 2 persons.45

3 Per this regulation, an ALJ is not only permitted to, but is required to, consider 4 information contained in medical records—beyond the medical opinions 5 themselves—when crafting a claimant’s RFC. Part of that process includes 6 considering medical-source statements about what a claimant can do, but the 7 regulation does not specify that a medical-source statement is always required. 8 Nonetheless, the regulation requires the agency to develop the claimant’s 9 “complete medical history” and to make “every reasonable effort to help . . . get 10 medical reports from [claimant’s] medical sources” before the ALJ determines that 11 a claimant is not disabled.46 12 Here, two medical sources opined that the medical record was not sufficient 13 to opine as to Plaintiff’s exertional functional abilities. The agency did schedule 14 three physical CEs and communicated with Plaintiff about these CEs. Yet, Plaintiff 15 was unable to attend one because she was ill, another because her anxiety was too 16 high, and the last because she forgot about it.

18 45 20 C.F.R. § 416.945(a)(3) (internal citations omitted). See also SSR 16-3p (“We 19 consider the individual’s symptoms when determining his or her residual 20 functional capacity and the extent to which the individual’s impairment-related 21 symptoms are consistent with the evidence in the record.”). 22 46 20 C.F.R. § 416.945(a)(3). 23 1 The regulations provide that if a claimant does not have a good reason for 2 failing to take part in a CE, that the Commissioner may find that the claimant is 3 not disabled.47 The regulations and the POMS identify some “good reason”

4 examples, including illness and mental limitations.48 Here, the ALJ did not 5 mention that physical CEs were scheduled or that Plaintiff did not appear for the 6 physical CEs; therefore, the ALJ did not discuss whether Plaintiff had good cause 7 for failure to appear and, resultantly, the ALJ did not deny disability on the basis 8 for failure to appear at the CEs. Instead, the ALJ proceeded with the sequential 9 evaluation, as permitted by POMS DI 23007.015.49

10 However, there is no indication in the record that the agency followed up to 11 obtain PA-C Bosma’s medical opinion, as is required by 20 C.F.R. § 416.945(a)(3)’s 12 directive that steps be taken by the agency to obtain medical-source statements 13 from a treating provider. Before concluding that Plaintiff was not disabled, the 14 15

16 47 20 C.F.R. § 416.918(a). 17 48 20 C.F.R. § 416.918(b); POMS DI 23007.001. 18 49 POMS DI 23007.015 (When the agency has “made reasonable, but unsuccessful 19 effort to obtain the claimant’s cooperation to comply with a request for evidence or 20 action, or to confirm or attend a consultative examination (CE) appointment, make 21 a determination based on the evidence in file using the sequential evaluation 22 process.”). 23 1 agency should have followed up with obtaining a completed Physical Functional 2 Evaluation from PA-C Bosma.50 3 This record therefore lacks any medical-source statement as to Plaintiff’s

4 lifting, standing, sitting, walking, and postural abilities. Yet, notwithstanding the 5 lack of a medical-source statement offering such, the ALJ found that Plaintiff, who 6 was 57-years old or older during the relevant period, could perform medium work, 7 i.e., lift no more than 50 pounds at a time with frequent lifting or carrying of 8 objects weighing up to 25 pounds and standing or walking, off and on, for a total of 9 about 6 hours each workday, as well as frequent balancing, stooping, kneeling, and

10 crouching.51 The ALJ based this finding on the underlying medical records which 11 generally noted full range of motion and normal gait. But when reviewing the 12 medical records, both Dr. Fitterer and Dr. Platter found the record insufficient to 13

14 50 Before assessing that there is insufficient medical evidence, the Commissioner is 15 to make an initial request for medical records from the claimant’s own medical 16 sources and to make a follow-up request within a certain number of days after the 17 initial request “if we do not receive the evidence.” POMS DI 22505.001; see also 18 Celaya v. Halter, 332 F.3d 1177, 1183 (9th Cir. 2003) (The “affirmative 19 responsibility to develop the record” is necessary to ensure that the ALJ’s decision 20 is based on substantial evidence.); POMS DI 22505.035 (recognizing that the duty 21 to develop the record applies at all levels of adjudication). 22 51 20 C.F.R. § 416.967(c); SSR 83-10. 23 1 allow a determination as to Plaintiff’s functional abilities. After all, those same 2 records also showed that Plaintiff had a severe impairment of DDD of the lumbar 3 and cervical back, was obese, received an injection for neck pain, and was regularly

4 prescribed medication for back pain and spasms.52 5 The ALJ fails to adequately explain how he—and not the physicians—were 6 able to determine from the medical records that Plaintiff could perform medium 7 work. Without an adequate bridge between the medical records and the medium- 8 work RFC, the ALJ’s medium-work RFC is based on speculative inferences rather 9 than substantial evidence.53 And the ALJ’s unsupported finding that Plaintiff could

10 perform medium work consequentially impacted the nondisability decision 11 because, if Plaintiff is limited to light work, she will be considered disabled given 12 her Advanced Age category.54 13 As remand is necessary on this basis, the Court need not analyze Plaintiff’s 14 remaining claims. 15 16

17 52 See, e.g., AR 745 (Apr. 2020: Toradol injection for neck pain), AR 358–520, 649– 18 781 (records relating to prescribed opiates for back pain). 19 53 See Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975) (requiring the ALJ to 20 consider both the evidence that supports and the evidence that detracts from a 21 medical opinion). 22 54 20 C.F.R. Pt. 404, Subpt. P, App. 2, Medical-Vocational Rule 202.06 (light work). 23 1 C. Remand is required for further proceedings. 2 Plaintiff argues that remand for benefits is justified.55 However, further 3 administrative proceedings are needed to fully develop the record.56 On remand, in

4 additional to requesting a functional evaluation from PA-C Bosma, the ALJ is to 5 order physical and psychological CEs, as it has been more than 2 years since the 6 last psychological CE and there is no physical CE. The consultative examiners 7 must be given sufficient medical records to allow for a longitudinal perspective 8 since May 20, 2019.57 If Plaintiff fails to attend one or both examinations, the ALJ 9 is to address whether Plaintiff had good cause for failing to attend. If Plaintiff

10 again fails to attend a physical CE and no opinion is submitted by PA-C Bosma, the 11 ALJ is encouraged to call a medical expert to offer an opinion as to Plaintiff’s 12 13

14 55 Plaintiff argued that benefits should be awarded because Dr. Metoyer’s opined 15 nonexertional limitations preclude gainful employment. However, even if the ALJ 16 erred when analyzing Dr. Metoyer’s opinion, the Court finds that the conflicting 17 medical evidence relating to Plaintiff’s mental health does not clearly establish 18 disabling nonexertional limitations permitting the Court to award benefits at this 19 time. Therefore, the ALJ must reassess Plaintiff’s nonexertional limitations. 20 56 See Leon v. Berryhill, 800 F.3d 1041, 1045 (9th Cir. 2017); Garrison v. Colvin, 21 759 F.3d 995, 1020 (9th Cir. 2014). 22 57 The record must clearly identify what medical records the examiner reviewed. 23 1 functional abilities. The ALJ is to then reconsider the medical evidence, Plaintiff’s 2 symptom reports, and reevaluate the sequential process. 3 V. Conclusion

4 Plaintiff establishes the ALJ consequentially erred. The ALJ is to develop 5 the record and reevaluate—with meaningful articulation and evidentiary 6 support—the sequential process. 7 Accordingly, IT IS HEREBY ORDERED: 8 1. Plaintiff’s Motion for Summary Judgment, ECF No. 11, is 9 GRANTED.

10 2. The Commissioner’s Motion for Summary Judgment, ECF No. 16, is 11 DENIED. 12 3. The Clerk’s Office shall enter JUDGMENT in favor of Plaintiff. 13 4. This matter is REVERSED and REMANDED to the 14 Commissioner of Social Security for further proceedings 15 pursuant to sentence four of 42 U.S.C. § 405(g). 16 5. The case shall be CLOSED.

17 IT IS SO ORDERED. The Clerk’s Office is directed to file this order and 18 provide copies to all counsel. 19 DATED this 29th day of December 2022. 20 s/Edward F. Shea___________ 21 EDWARD F. SHEA Senior United States District Judge 22 23