3 U.S. F DIL ISE TD R I IN C TT H CE O URT EASTERN DISTRICT OF WASHINGTON 4 Apr 26, 2021
5 UNITED STATES DISTRICT COURT SEAN F. MCAVOY, CLERK EASTERN DISTRICT OF WASHINGTON 6
7 RAFAEL L., NO: 2:20-CV-00093-FVS 8 Plaintiff, ORDER GRANTING PLAINTIFF’S 9 v. MOTION FOR SUMMARY JUDGMENT AND DENYING 10 ANDREW M. SAUL, DEFENDANT’S MOTION FOR COMMISSIONER OF SOCIAL SUMMARY JUDGMENT 11 SECURITY,
12 Defendant.
13 14 BEFORE THE COURT are the parties’ cross motions for summary 15 judgment. ECF Nos. 13, 15. This matter was submitted for consideration without 16 oral argument. Plaintiff is represented by Attorney Jeffrey Schwab. Defendant is 17 represented by Special Assistant United States Attorney Stephen Dmetruk. The 18 Court has reviewed the administrative record, the parties’ completed briefing, and 19 is fully informed. For the reasons discussed below, the Court GRANTS Plaintiff’s 20 Motion for Summary Judgment, ECF No. 13, and DENIES Defendant’s Motion 21 for Summary Judgment, ECF No. 15. 1 JURISDICTION 2 Plaintiff Rafael L.1 protectively filed an application for Supplemental 3 Security Income (SSI) on May 30, 2017, Tr. 56, alleging an onset date of May 17, 4 2016 due to anxiety, obsessive compulsive disorder (OCD), posttraumatic stress
5 disorder (PTSD), a broken finger on the right hand, seizure disorder, degenerative 6 disc disease, degenerative joint disease, and a traumatic brain injury (TBI), Tr. 148. 7 Plaintiff’s application was denied initially, Tr. 83-86, and upon reconsideration, Tr.
8 90-92. A hearing before Administrative Law Judge Raymond L. Souza (“ALJ”) 9 was conducted on December 18, 2018. Tr. 28-55. Plaintiff was represented by 10 counsel and testified at the hearing. Id. The ALJ also took the testimony of 11 vocational expert Carrie Whitlow. Id. The ALJ denied SSI benefits on January 30,
12 2019. Tr. 15-23. The Appeals Council denied review on January 15, 2020. Tr. 1- 13 5. Plaintiff requested judicial review of the ALJ decision by this Court on March 14 10, 2020. ECF No. 1. The ALJ’s January 30, 2019 decision became the final
15 decision of the Commissioner, which is appealable to the district court pursuant to 16 42 U.S.C. §§ 405(g), 1383(c). 17 BACKGROUND 18 The facts of the case are set forth in the administrative hearing and
1In the interest of protecting Plaintiff’s privacy, the Court will use Plaintiff’s 20 first name and last initial, and, subsequently, Plaintiff’s first name only, throughout 21 1 transcripts, the ALJ’s decision, and the briefs of Plaintiff and the Commissioner. 2 Only the most pertinent facts are summarized here. 3 Plaintiff was 36 years old at the date of application. Tr. 147. Plaintiff 4 completed his GED in 2001. Tr. 197. Plaintiff has never had formal employment
5 because he was incarcerated from May 13, 1996 to 2016. Tr. 196-97, 160, 261. 6 STANDARD OF REVIEW 7 A district court’s review of a final decision of the Commissioner of Social
8 Security is governed by 42 U.S.C. §§ 405(g), 1383(c). The scope of review under 9 § 405(g) is limited; the Commissioner’s decision will be disturbed “only if it is not 10 supported by substantial evidence or is based on legal error.” Hill v. Astrue, 698 11 F.3d 1153, 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence
12 that a reasonable mind might accept as adequate to support a conclusion.” Id. at 13 1159 (quotation and citation omitted). Stated differently, substantial evidence 14 equates to “more than a mere scintilla[,] but less than a preponderance.” Id.
15 (quotation and citation omitted). In determining whether the standard has been 16 satisfied, a reviewing court must consider the entire record as a whole rather than 17 searching for supporting evidence in isolation. Id. 18 In reviewing a denial of benefits, a district court may not substitute its
19 judgment for that of the Commissioner. “The court will uphold the ALJ's 20 conclusion when the evidence is susceptible to more than one rational 21 interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). 1 Further, a district court will not reverse an ALJ’s decision on account of an error 2 that is harmless. Id. An error is harmless where it is “inconsequential to the 3 [ALJ’s] ultimate nondisability determination.” Id. (quotation and citation omitted). 4 The party appealing the ALJ’s decision generally bears the burden of establishing
5 that it was harmed. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). 6 FIVE-STEP EVALUATION PROCESS 7 A claimant must satisfy two conditions to be considered “disabled” within
8 the meaning of the Social Security Act. First, the claimant must be “unable to 9 engage in any substantial gainful activity by reason of any medically determinable 10 physical or mental impairment which can be expected to result in death or which 11 has lasted or can be expected to last for a continuous period of not less than twelve
12 months.” 42 U.S.C. § 1382c(a)(3)(A). Second, the claimant’s impairment must be 13 “of such severity that he is not only unable to do his previous work[,] but cannot, 14 considering his age, education, and work experience, engage in any other kind of
15 substantial gainful work which exists in the national economy.” 42 U.S.C. § 16 1382c(a)(3)(B). 17 The Commissioner has established a five-step sequential analysis to 18 determine whether a claimant satisfies the above criteria. See 20 C.F.R. §
19 416.920(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s work 20 activity. 20 C.F.R. § 416.920(a)(4)(i). If the claimant is engaged in “substantial 21 gainful activity,” the Commissioner must find that the claimant is not disabled. 20 1 C.F.R. § 416.920(b). 2 If the claimant is not engaged in substantial gainful activity, the analysis 3 proceeds to step two. At this step, the Commissioner considers the severity of the 4 claimant’s impairment. 20 C.F.R. § 416.920(a)(4)(ii). If the claimant suffers from
5 “any impairment or combination of impairments which significantly limits [his or 6 her] physical or mental ability to do basic work activities,” the analysis proceeds to 7 step three. 20 C.F.R. § 416.920(c). If the claimant’s impairment does not satisfy
8 this severity threshold, however, the Commissioner must find that the claimant is 9 not disabled. 20 C.F.R. § 416.920(c). 10 At step three, the Commissioner compares the claimant’s impairment to 11 severe impairments recognized by the Commissioner to be so severe as to preclude
12 a person from engaging in substantial gainful activity. 20 C.F.R. § 13 416.920(a)(4)(iii). If the impairment is as severe or more severe than one of the 14 enumerated impairments, the Commissioner must find the claimant disabled and
15 award benefits. 20 C.F.R. § 416.920(d). 16 If the severity of the claimant’s impairment does not meet or exceed the 17 severity of the enumerated impairments, the Commissioner must pause to assess 18 the claimant’s “residual functional capacity.” Residual functional capacity (RFC),
19 defined generally as the claimant’s ability to perform physical and mental work 20 activities on a sustained basis despite his or her limitations, 20 C.F.R. § 21 416.945(a)(1), is relevant to both the fourth and fifth steps of the analysis. 1 At step four, the Commissioner considers whether, in view of the claimant’s 2 RFC, the claimant is capable of performing work that he or she has performed in 3 the past (past relevant work). 20 C.F.R. § 416.920(a)(4)(iv). If the claimant is 4 capable of performing past relevant work, the Commissioner must find that the
5 claimant is not disabled. 20 C.F.R. § 416.920(f). If the claimant is incapable of 6 performing such work, the analysis proceeds to step five. 7 At step five, the Commissioner considers whether, in view of the claimant’s
8 RFC, the claimant is capable of performing other work in the national economy. 9 20 C.F.R. § 416.920(a)(4)(v). In making this determination, the Commissioner 10 must also consider vocational factors such as the claimant’s age, education and 11 past work experience. 20 C.F.R. § 416.920(a)(4)(v). If the claimant is capable of
12 adjusting to other work, the Commissioner must find that the claimant is not 13 disabled. 20 C.F.R. § 416.920(g)(1). If the claimant is not capable of adjusting to 14 other work, analysis concludes with a finding that the claimant is disabled and is
15 therefore entitled to benefits. 20 C.F.R. § 416.920(g)(1). 16 The claimant bears the burden of proof at steps one through four. Tackett v. 17 Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to step five, 18 the burden shifts to the Commissioner to establish that (1) the claimant is capable
19 of performing other work; and (2) such work “exists in significant numbers in the 20 national economy.” 20 C.F.R. § 416.960(c)(2); Beltran v. Astrue, 700 F.3d 386, 21 389 (9th Cir. 2012). 1 ALJ’S FINDINGS 2 At step one, the ALJ found that Plaintiff had not engaged in substantial 3 gainful activity since the application date, May 30, 2017. Tr. 17. At step two, the 4 ALJ found that Plaintiff had the following severe impairments: degenerative disc
5 disease; seizure disorder; PTSD; anxiety disorder; and OCD. Tr. 17. At step three, 6 the ALJ found that Plaintiff did not have an impairment or combination of 7 impairments that meet or medically equaled the severity of a listed impairment.
8 Tr. 17. The ALJ then found that Plaintiff had the RFC to perform light work as 9 defined in 20 CFR § 416.967(b) with the following limitations: 10 no climbing ladders, ropes, or scaffolds. He can occasionally climb ramps and stairs, stoop, kneel, crouch, and crawl. The claimant must 11 avoid all exposure to hazards (including moving machinery and unprotected heights). The claimant is limited to simple, routine work 12 with an SVP 1 and 2. The claimant can have no more than occasional interaction with the general public, coworkers, and supervisors. 13 Tr. 19. 14 At step four, the ALJ found that Plaintiff had no past relevant work. Tr. 22. 15 At step five, the ALJ found that considering Plaintiff’s age, education, work 16 experience, and RFC, there were other jobs that exist in significant numbers in the 17 national economy that Plaintiff could perform, including: production assembler; 18 inspector and hand packager; and garment folder. Tr. 23. On that basis, the ALJ 19 concluded that Plaintiff was not under a disability, as defined in the Social Security 20 Act, from May 30, 2017, the date of application, through the date of his decision. 21 Tr. 23. 1 ISSUES 2 Plaintiff seeks judicial review of the Commissioner’s final decision denying 3 him SSI under Title XVI of the Social Security Act. ECF No. 13. Plaintiff raises 4 the following issues for this Court’s review:
5 1. Whether the ALJ erred in evaluating the medical opinion evidence; 6 2. Whether the ALJ properly considered Plaintiff’s symptom statements; and 7 3. Whether the ALJ made a proper step five determination.
8 DISCUSSION 9 1. Medical Opinion Evidence 10 Plaintiff challenges the ALJ’s finding that the April 20, 2017 opinion of 11 R.A. Cline, Psy.D. was persuasive. ECF No. 13 at 8-11.
12 For claims filed on or after March 27, 2017, new regulations apply that 13 change the framework for how an ALJ must weigh medical opinion evidence. 14 Revisions to Rules Regarding the Evaluation of Medical Evidence, 2017 WL
15 168819, 82 Fed. Reg. 5844 (Jan. 18, 2017); 20 C.F.R. § 416.920c. The new 16 regulations provide the ALJ will no longer give any specific evidentiary weight to 17 medical opinions or prior administrative medical findings, including those from 18 treating medical sources. 20 C.F.R. § 416.920c(a). Instead, the ALJ will consider
19 the persuasiveness of each medical opinion and prior administrative medical 20 finding, regardless of whether the medical source is an Acceptable Medical Source. 21 20 C.F.R. § 416.920c(c). The ALJ is required to consider multiple factors, 1 including supportability, consistency, the source’s relationship with the claimant, 2 any specialization of the source, and other factors (such as the source’s familiarity 3 with other evidence in the file or an understanding of Social Security’s disability 4 program). Id. The regulations make clear that the supportability and consistency
5 of the opinion are the most important factors, and the ALJ must articulate how she 6 considered those factors in determining the persuasiveness of each medical opinion 7 or prior administrative medical finding. 20 C.F.R. § 416.920c(b). The ALJ may
8 explain how he considered the other factors, but is not required to except in cases 9 where two or more opinions are equally well-supported and consistent with the 10 record. Id. 11 Supportability and consistency are further explained in the regulations:
12 (1) Supportability. The more relevant the objective medical evidence and supporting explanations presented by a medical source are to 13 support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior 14 administrative medical finding(s) will be.
15 (2) Consistency. The more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other 16 medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical 17 finding(s) will be.
18 20 C.F.R. § 416.920c(c). 19 On May 26, 2016, Dr. Cline evaluated Plaintiff and later completed a 20 Psychological/Psychiatric Evaluation form for the Washington Department of 21 Social and Health Services (DSHS). Tr. 260-64. He diagnosed Plaintiff with 1 OCD, panic disorder, and PTSD. Tr. 262. Plaintiff completed a Rey 15-Item 2 Memory Test (RMT) with a score of 10 indicating an average level of effort and 3 cooperation with the task and “meets basic criteria for non-malingering at this 4 time.” Tr. 261. Dr. Cline opined that Plaintiff had a marked limitation in the
5 abilities to communicate and perform effectively in a work setting, to maintain 6 appropriate behavior in a work setting, and to complete a normal workday and 7 work week without interruptions form psychologically based symptoms. Tr. 263.
8 He also opined that Plaintiff had a moderate limitation in five additional areas of 9 basic work activity. Tr. 262-63. 10 On April 20, 2017, Plaintiff completed a second evaluation of Plaintiff and 11 later completed a Psychological/Psychiatric Evaluation form for DSHS. Tr. 265-
12 69. Plaintiff completed a RMT with a score of 3, indicating “a poor level of effort 13 and cooperation with the task and does not provide evidence of non-malingering.” 14 Tr. 265. Therefore, Plaintiff was given a Test of Memory Malingering (TOMM)
15 with scores of 19 and 25 that “do not provide evidence of non-malingering.” Id. 16 Plaintiff was then diagnosed as malingering, and Dr. Cline stated that “[c]laimant 17 has previously been diagnosed with PTSD, OCD and panic disorder by this writer 18 but due to the presence of significant malingering today, these diagnoses are
19 suspended at this time.” Tr. 265. Dr. Cline made the following statement 20 regarding the finding of malingering: 21 // 1 There are multiple reasons that claimants malinger, but when a claimant is found to be malingering it is usually for one of two reasons, either to 2 look better or worse than they truly are. In this context claimants typically malinger in order to appear worse off than they truly are and 3 thus access benefits of some kind. As their malingering indicates a level of untruthfulness severity ratings cannot be made and symptoms 4 cannot be described accurately on the basis of their self-report and will not be provided in the assessment. Any diagnoses that are provided 5 aside from malingering should be viewed as provisional. Malingering is not a static state, and the level of malingering will wax and wane with 6 the person’s motivation to access benefits. Thus re-evaluation for malingering is valid, generally after about 6 months. Additionally, it 7 should be noted that TOMM is highly insensitive to organic brain syndrome, meaning that those with significant TBI or legitimate 8 cognitive problems typically pass this assessment when they are not malingering. 9 Tr. 266. 10 The ALJ found Dr. Cline’s 2017 opinion was “persuasive and supported by 11 the test administered by Dr. Cline documenting the claimant’s exaggeration of 12 symptoms.” Tr. 21. The ALJ further characterized the 2017 evaluation as Dr. 13 Cline “rescinded the prior diagnoses of OCD, panic disorder, and PTSD.” Tr. 21. 14 Plaintiff challenges the ALJ’s finding that the opinion was persuasive because the 15 finding of malingering was not supported by substantial evidence. ECF No. 13 at 16 11. 17 At the 2017 evaluation, Plaintiff reported to Dr. Cline that he had a history 18 of a head injury that resulted in a loss of consciousness for 36 hours and a history 19 of a seizure disorder beginning in 2016. Tr. 265. Following a third seizure, 20 Plaintiff was sent for an MRI of the brain in 2016. Tr. 319-21. The MRI was 21 1 increased T2 and FLAIR signal involves the deep and subcortical white matter of 2 the right frontal lobe.” Tr. 399. The radiologist’s impression was that there was an 3 “[a]rea of encephalomalacia involving the right frontal lobe. This may relate to an 4 old insult.” Id. Dr. Packer, who reviewed Dr. Cline’s records and the MRI stated
5 that “[t]he 4/20/17 Psych assessment of malingering must be very much discounted 6 in view of the evident post-TBI findings on brain MRI, with seizure focus and 7 encephalomalacia in the [right] frontal lobe.” Tr. 271. Dr. Packer stated a second
8 time that “psych statements regarding malingering are superseded by objective 9 findings on MRI brain.” Id. 10 At the time of his 2017 evaluation and opinion, Dr. Cline did not review any 11 records other than his previous 2016 Psychological/Psychiatric Evaluation form for
12 DSHS. Tr. 265 (“Records reviewed: Previous assessment by this writing dated 13 5/26/16 with diagnoses of PTSD, OCT, and panic disorder.”). Plaintiff informed 14 him of his head injury and the recent onset of seizure activity. Id. Dr. Cline
15 appeared aware that such an injury may result in the TOMM results being 16 inaccurate as he included the statement that the test is “highly insensitive to 17 organic brain syndromes, meaning those with significant TBI or legitimate 18 cognitive problems typically pass this assessment when they are not malingering,”
19 and cited to a medical periodical supporting this assertion. Tr. 266. Therefore, the 20 introduction of the MRI into the record caused a reviewing provider, Dr. Packer, to 21 reject the finding of malingering. Tr. 270. Therefore, the record, as it currently 1 stands, is ambiguous regarding malingering. 2 “In Social Security cases the ALJ has a special duty to fully and fairly 3 develop the record and to assure that the claimant’s interests are considered.” 4 Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996). “An ALJ’s duty to develop
5 the record . . . is triggered only when there is ambiguous evidence or when the 6 record is inadequate to allow for proper evaluation of the evidence.” Mayes v. 7 Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001); Webb v. Barnhart, 433 F.3d 683,
8 687 (9th Cir. 2005) (“The ALJ’s duty to supplement a claimant’s record is 9 triggered by ambiguous evidence, the ALJ’s own finding that the record is 10 inadequate[,] or the ALJ’s reliance on an expert’s conclusion that the evidence is 11 ambiguous.”). The ALJ failed to address and resolve this ambiguity, which was an
12 error. 13 This ambiguity could have been properly addressed by the ALJ calling a 14 medical expert to testify at the hearing regarding Dr. Cline’s finding of
15 malingering in April of 2017 and the MRI showing the TBI in December of 2016. 16 The case is remanded for the ALJ to properly address this ambiguity and call a 17 medical expert to testify at a supplemental hearing. At that time, the medical 18 expert can also provide testimony regarding Dr. Cline’s language suspending a
19 diagnosis due to malingering compared to the ALJ’s language rescinding a 20 diagnosis due to malingering as brought forth in the parties’ briefings. If 21 additional testing is necessary to properly develop the record, the ALJ will send 1 Plaintiff for additional consultative evaluations to perform the necessary testing. 2 2. Plaintiff’s Symptom Statements 3 Plaintiff argues that the ALJ erred in his treatment of his symptom 4 statements. ECF No. 13 at 11-13.
5 An ALJ engages in a two-step analysis when evaluating a claimant’s 6 testimony regarding subjective pain or symptoms. “First, the ALJ must determine 7 whether the claimant has presented objective medical evidence of an underlying
8 impairment which could reasonably be expected to produce the pain or other 9 symptoms alleged.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). “The 10 claimant is not required to show that his impairment could reasonably be expected 11 to cause the severity of the symptom he has alleged; he need only show that it
12 could reasonably have caused some degree of the symptom.” Id. 13 Second, “[i]f the claimant meets the first test and there is no evidence of 14 malingering, the ALJ can only reject the claimant’s testimony about the severity of
15 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 16 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (internal 17 citations and quotations omitted). 18 The issue of malingering is to be addressed further in remand proceedings.
19 Therefore, Plaintiff’s symptom statements will need to be addressed further once 20 the issue of malingering is resolved. 21 /// 1 3. Step Five 2 Plaintiff’s step five argument is derivative of his challenge to the ALJ’s 3 finding of malingering. ECF No. 13 at 18. Therefore, the ALJ will readdress step 4 five upon remand.
5 CONCLUSION 6 The decision whether to remand for further proceedings or reverse and 7 award benefits is within the discretion of the district court. McAllister v. Sullivan,
8 888 F.2d 599, 603 (9th Cir. 1989). An immediate award of benefits is appropriate 9 where “no useful purpose would be served by further administrative proceedings, 10 or where the record has been thoroughly developed,” Varney v. Sec'y of Health & 11 Human Servs., 859 F.2d 1396, 1399 (9th Cir. 1988), or when the delay caused by
12 remand would be “unduly burdensome[.]” Terry v. Sullivan, 903 F.2d 1273, 1280 13 (9th Cir. 1990); see also Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014) 14 (noting that a district court may abuse its discretion not to remand for benefits
15 when all of these conditions are met). This policy is based on the “need to 16 expedite disability claims.” Varney, 859 F.2d at 1401. But where there are 17 outstanding issues that must be resolved before a determination can be made, and it 18 is not clear from the record that the ALJ would be required to find a claimant
19 disabled if all the evidence were properly evaluated, remand is appropriate. See 20 Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 211 21 F.3d 1172, 1179-80 (9th Cir. 2000). 1 Here, Plaintiff did not request an immediate award of benefits, ECF No. 13 2 at 16-17, and further administrative proceedings are necessary for the ALJ to 3 resolve the ambiguity regarding evidence of Plaintiff malingering compared to the 4 evidence of Plaintiff’s TBI. See Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d
5 1090, 1103-04 (9th Cir. 2014) (remand for benefits is not appropriate when further 6 administrative proceedings would serve a useful purpose). Therefore, the Court 7 remands this case for further proceedings consistent with this Order.
8 On remand, the ALJ will supplement the record with any outstanding 9 evidence, call a medical expert to testify at a remand hearing to resolve the issue of 10 Plaintiff’s malingering testing and his TBI, and send Plaintiff for an tests that are 11 required to properly develop the record. Additionally, the ALJ will readdress
12 Plaintiff’s symptom statements and make a new step five determination. The ALJ 13 will call a vocational expert to testify in making the new step five determination. 14 ACCORDINGLY, IT IS HEREBY ORDERED:
15 1. Plaintiff’s Motion for Summary Judgment, ECF No. 13, is GRANTED, 16 and the matter is remanded for further proceedings consistent with this 17 Order. 18 //
19 // 20 // 21 // 1 2. Defendant’s Motion for Summary Judgment, ECF No. 15 is DENIED. The District Court Executive is hereby directed to enter this Order and provide 3 || copies to counsel, enter judgment in favor of the Plaintiff, and CLOSE the file. 4 DATED this 26" day of April 2021. 5 6 7 g ‘ Sfrelerld Eee toar Stanley A. Bastian 10 Chief United States District Judge 11 12 13 14 15 16 17 18 19 20 21