Lepine v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: September 21, 2021
• Docket: 3:20-cv-05510
• Status: Unknown

Opinion

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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 MICHELLE L., 8 Plaintiff, CASE NO. C20-5510-BAT 9 v. ORDER REVERSING THE 10 COMMISSIONER’S FINAL DECISION COMMISSIONER OF SOCIAL SECURITY, AND REMANDING 11 Defendant. 12

13 Plaintiff appeals the ALJ’s decision finding her not disabled. The ALJ found 14 degenerative disc disease of the lumbar spine without stenosis; sarcoidosis of the lymph nodes 15 status post dissection; sarcoidosis of the lung; diabetes mellitus type 2 with peripheral 16 neuropathy; irritable bowel syndrome with diarrhea; migraine without aura, without status 17 migrainous; carpal tunnel syndrome, right; and obesity are severe impairments; Plaintiff has the 18 residual functional capacity (RFC) to perform sedentary work subject to a series of further 19 limitations; and Plaintiff is not disabled because she can perform past relevant work as an 20 administrative assistant. Tr. 184-92. 21 Plaintiff contends the ALJ erroneously discounted two medical opinions, and her 22 testimony, and thus improperly assessed RFC. Dkt. 32. For the reasons below, the Court 23 1 REVERSES the Commissioner’s final decision and REMANDS the matter for further 2 administrative proceedings under sentence four of 42 U.S.C. § 405(g). 3 DISCUSSION 4 The Court may reverse the Commissioner’s denial of Social Security benefits only if the

5 ALJ’s decision is legally erroneous or not supported by substantial evidence. Trevizo v. 6 Berryhill, 871 F.3d 664, 674 (9th Cir. 2017). 7 A. Medical Opinions 8 Under 20 C.F.R. § 416.920c(b)(2), (c), the ALJ considers the persuasiveness of the 9 medical opinion using five factors (supportability, consistency, relationship with claimant, 10 specialization, and other), with supportability and consistency being the two most important 11 factors. The decision must explain how the ALJ considered the factors of supportability and 12 consistency, 20 C.F.R. § 416.920c(b), and must be supported by substantial evidence. Plaintiff 13 contends the ALJ erroneously discounted the opinions of Dr. Gehrett and Dr. Radcliffe. 14 1. Joseph Gehrett, M.D.

15 The ALJ noted Dr. Gehrett provided two medical opinions. The ALJ found Dr. Gehrett 16 opined in December 2016 Plaintiff “had a number of medical issues requiring ongoing 17 appointments and which caused absence from work on a frequent basis due to her medical 18 conditions.” Tr. 191. The ALJ found this opinion “not persuasive” because it “provided only a 19 vague statement of absences from work, with no pinpointing of days or weeks missed” and “did 20 not describe how the impairments adversely affected the claimant’s ability to work.” Id. Because 21 the ALJ found the doctor's opinion vague, the ALJ should have but failed to develop the record 22 by recontacting the doctor, who had treated Plaintiff since 2016. “The ALJ in a social security 23 case has an independent duty to fully and fairly develop the record and to assure that the 1 claimant’s interests are considered.” Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) 2 (cleaned up). “Ambiguous evidence, or the ALJ’s own finding that the record is inadequate to 3 allow for proper evaluation of the evidence, triggers the ALJ’s duty to conduct an appropriate 4 inquiry.” Id. (cleaned up). This is exactly the situation here. Further, the doctor’s opinion

5 concerning Plaintiff’s absences describes a functional limitation, not a vague comment not 6 bearing on Plaintiff's ability to work. See, e.g., Rollins v. Massanari, 261 F.3d 853, 859 (9th Cir. 7 2001) (Ferguson, J., dissenting) (“An ability to keep to an 8-hour a day, 5-day a week schedule 8 without accumulating too many absences is a pre-requisite for many jobs.”). This further 9 reenforces the ALJ's obligation to develop the record rather than simply reject Gehrett's opinin. 10 The ALJ also noted Dr. Gehrett “completed a response to an accommodation form” in 11 April 2017. Tr. 191. The ALJ found this opinion unpersuasive because it “did not provide 12 objective medical evidence as to the impairments’ alleged adverse effect on the claimant’s ability 13 to perform job functions.” Id. However, the accommodation form did not call for a citation to 14 “objective medical evidence.” Rather, the accommodation form was, as Plaintiff argues, based

15 on Dr. Gehrett’s first-hand knowledge of Plaintiff, gained over the course of a multiyear treating 16 history, which the ALJ did not acknowledge or discuss. 17 The Court notes the ALJ rejected Dr. Gehrett’s opinion Plaintiff “could not sit for more 18 than 20 minutes” as inconsistent with Plaintiff’s “road trip to Las Vegas and the Grand Canyon” 19 the “very next month.” Tr. 191. It is unclear whether the road trip is or isn't consistent with Dr. 20 Gehrett's opinion because although Plaintiff testified about her trips, the ALJ did not question her 21 about for how long she was able to sit during the trips. Additionally, Dr. Gehrett opined “had a 22 number of medical issues requiring ongoing appointments and which caused absence from work 23 on a frequent basis." Thus even excluding the sitting limitation, Plaintiff has other limitations 1 which still must be reassessed. In sum, the Court concludes the ALJ erred in discounting Dr. 2 Gehrett's opinions and must reassess the opinions on remand. 3 2. Kristopher Radcliffe, M.D. 4 The ALJ found Dr. Radcliffe completed a medical source statement in June 2017, in

5 which he opined Plaintiff’s foot pain caused her “to miss work and to leave work early” and 6 required “the use of topical analgesics and opiate analgesics once or twice weekly.” Tr. 191. The 7 ALJ found this opinion “not persuasive.” The ALJ viewed the opinion as inconsistent with 8 “claimant walking in Las Vegas for two hours only one month earlier.” Id. Substantial evidence 9 does not support this ground. The single treatment note that the ALJ cites is not a model of 10 clarity. See Tr. 1680 (treatment note indicating “[w]hile in Las Vegas [Plaintiff] noticed an area 11 of bleeding after her walking, approximately 2 hrs per the patient) (emphasis added). Thus, it is 12 unclear whether Plaintiff started bleeding after walking two hours or only noticed she was 13 bleeding two hours after she walked for an unspecified time period. Plaintiff testified and 14 clarified “2 hrs” was in fact an error. See Tr. 267 (“It was actually two blocks.”); Tr. 268 (“it was

15 actually a two block radius that it happened in”). 16 As discussed below, the ALJ erroneously discounted Plaintiff’s testimony. Thus, because 17 the note was unclear and Plaintiff testified her foot problems occurred after walking two blocks, 18 not two hours, the ALJ accordingly erred in discounting Dr. Radcliffe's opinions. 19 3. Other Medical Evidence 20 Plaintiff lists, seriatim, findings and notations of numerous medical providers. Dkt. 32 at 21 9-14. She states the findings of these sources support her testimony and the opinions of Dr. 22 Gehrett and Dr. Radcliffe. Id. at 14. The Court rejects Plaintiff’s conclusory statements as 23 grounds to reverse the ALJ. Plaintiff bears the burden of showing the ALJ harmfully erred. See 1 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Plaintiff’s conclusory statements are 2 insufficient to meet this burden. See Indep. Towers of Washington v. Washington, 350 F.3d 925, 3 930 (9th Cir. 2003) (“Our adversarial system relies on the advocates to inform the discussion and 4 raise the issues to the court. …We require contentions to be accompanied by reasons.”); see

5 generally Carmickle v. Commissioner, 533 F.3d 1155, 1161 n.2 (9th Cir. 2008) (declining to 6 address issues not argued with any specificity); see also James M. v. Comm’r of Soc. Sec., 2020 7 WL 3605630, at *2 (W.D. Wash. July 2, 2020) (“[I]t is not enough merely to present an 8 argument in the skimpiest way (i.e., listing the evidence), and leave the Court to do counsel’s 9 work—framing the argument, and putting flesh on its bones through a discussion of the 10 applicable law and facts.”). 11 B. Plaintiff’s Testimony 12 The ALJ found Plaintiff presented objective medical evidence establishing underlying 13 impairments that could cause the symptoms alleged and did not find malingering. Tr. 186-87. 14 The ALJ was thus required to provide “specific, clear, and convincing” reasons supported by

15 substantial evidence to discount Plaintiff’s testimony. Trevizo, 871 F.3d at 678. 16 The ALJ discounted Plaintiff’s testimony as inconsistent with the medical record. Tr. 17 187. However, because the ALJ erred in assessing critical medical evidence, as discussed above, 18 this is not a valid ground to discount Plaintiff’s testimony. 19 The ALJ also discounted Plaintiff’s testimony as inconsistent with her activities, pointing 20 to Plaintiff being able to “shop[] for food, household items, clothes, shoes, yard stuff and gifts” 21 and taking a trip to the Grand Canyon and Las Vegas, where “she had gone walking for 22 approximately two hours.” Tr. 191. As to Plaintiff’s shopping, these minimal activities do not 23 undercut Plaintiff’s claims. See Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (“This 1 court has repeatedly asserted that the mere fact that a plaintiff has carried on certain daily 2 activities, such as grocery shopping, driving a car, or limited walking for exercise, does not in 3 any way detract from her credibility as to her overall disability. One does not need to be ‘utterly 4 incapacitated’ in order to be disabled.”) (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir.

5 1989)); Cooper v. Bowen, 815 F.2d 557, 561 (9th Cir. 1987) (noting that a disability claimant 6 need not “vegetate in a dark room” in order to be deemed eligible for benefits). 7 As to the ALJ's finding Plaintiff walked for two hours in Law Vegas, the finding is based 8 upon a single unclear note in the medical record. As discussed above Plaintiff indicated the 9 medical note indicating she walked for two hours was incorrect and that she walked for two 10 blocks. Other than the note, there does not appear to be any independent evidence showing 11 Plaintiff walked for two hours in Las Vegas or in any other location. The Court concludes 12 substantial evidence does not support the ALJ's findings and the ALJ accordingly erred in 13 discounting Plaintiff’s testimony. 14 CONCLUSION

15 Because the ALJ misevaluated the medical evidence and Plaintiff’s testimony, the ALJ 16 will necessarily need to determine, on remand, whether the RFC needs to be adjusted and its 17 impact on the subsequent steps of the disability evaluation process. For this reason, the Court 18 need not reach Plaintiff’s assignment of error regarding the RFC. Similarly, because the Court 19 remands this case, it need not reach Plaintiff’s argument concerning evidence submitted to the 20 Appeals Council, as that evidence should be assessed upon remand. 21 For the foregoing reasons, the Commissioner’s final decision is REVERSED, and this 22 case is REMANDED for further administrative proceedings under sentence four of 42 U.S.C. 23 § 405(g). 1 On remand, the ALJ shall reevaluate the opinions of Dr. Gehrett and Dr. Radcliffe, 2 reassess Plaintiff’s testimony, develop the record as appropriate including consideration of the 3 evidence that was presented to the appeals council post-hearing, redetermine the RFC as needed 4 and proceed to the remaining steps of the disability evaluation process.

5 DATED this 21st day of September, 2021. 6 A 7 BRIAN A. TSUCHIDA United States Magistrate Judge 8

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