Miles v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: August 9, 2022
• Docket: 3:21-cv-05857
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 SALLIE M., 7 CASE NO. 3:21-CV-5857-DWC Plaintiff, 8 ORDER REVERSING AND v. REMANDING DEFENDANT’S 9 DECISION TO DENY BENEFITS COMMISSIONER OF SOCIAL 10 SECURITY, Defendant. 11 Plaintiff filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of 12 Defendant’s denial of Plaintiff’s application for disability insurance benefits (“DIB”). Pursuant 13 to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73 and Local Rule MJR 13, the parties 14 have consented to have this matter heard by the undersigned Magistrate Judge. See Dkt. 3. 15 After considering the record, the Court concludes the Administrative Law Judge (“ALJ”) 16 did not harmfully err when he evaluated the medical opinion evidence, but Plaintiff’s case was 17 adjudicated by an improperly and unconstitutionally appointed ALJ. Thus, this matter is reversed 18 and remanded pursuant to sentence four of 42 U.S.C. § 405(g) to the Social Security 19 Commissioner (“Commissioner”) for further proceedings consistent with this Order. 20 FACTUAL AND PROCEDURAL HISTORY 21 On February 29, 2016, Plaintiff filed an application for DIB, alleging disability as of 22 December 31, 2011. See Dkt. 10; Administrative Record (“AR”) 18, 131. Plaintiff’s application 23 was denied upon initial administrative review and on reconsideration. AR 191-93, 199-201. 24 1 Plaintiff’s date last insured is December 31, 2017, making December 31, 2011 through 2 December 31, 2017 the relevant period. AR 162. 3 ALJ Malcolm Ross held a hearing on September 20, 2017 and issued a decision on May 4 28, 2018 finding Plaintiff not disabled during the relevant period. AR 44-82, 162-181. On July

5 22, 2019, the Appeals Council granted Plaintiff’s request to review the ALJ’s decision, vacated 6 the ALJ’s decision, and remanded for further consideration of Plaintiff’s residual functional 7 capacity. AR 187-188. ALJ Ross held a second hearing on remand and issued a second decision 8 on November 4, 2020, again finding Plaintiff not disabled during the relevant period. AR 12-43, 9 83-129. On September 20, 2021, the Appeals Council denied Plaintiff’s request to review the 10 ALJ’s second decision. AR 1-5. 11 In Plaintiff’s Opening Brief, Plaintiff contends the ALJ erred in evaluating the medical 12 opinion evidence. Dkt. 10, p. 1. Plaintiff also contends her case was adjudicated by an 13 improperly and unconstitutionally appointed ALJ and that this Court should remand for a new 14 hearing with a different ALJ. Id.

15 STANDARD OF REVIEW 16 Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of 17 social security benefits if the ALJ’s findings are based on legal error or not supported by 18 substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th 19 Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). 20 DISCUSSION 21 I. Whether the ALJ Erred in Evaluating Medical Opinion Evidence 22 Plaintiff contends the ALJ erred in evaluating the medical opinions of Dr. Anne Tuttle 23 and Amanda Kleck, MA, MHP, LMHCA. Dkt. 10, pp. 1-17.

24 1 Plaintiff filed her application before March 27, 2017. AR 131, 144. Pursuant to the 2 applicable rules, in assessing an acceptable medical source, an ALJ must provide “clear and 3 convincing” reasons for rejecting the uncontradicted opinion of either a treating or examining 4 doctor. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (citing Pitzer v. Sullivan, 908 F.2d

5 502, 506 (9th Cir. 1990)); Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988). When a treating 6 or examining doctor's opinion is contradicted, the opinion can be rejected “for specific and 7 legitimate reasons that are supported by substantial evidence in the record.” Lester, 81 F.3d at 8 830–31 (citing Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995); Murray v. Heckler, 722 9 F.2d 499, 502 (9th Cir. 1983)). The ALJ can accomplish this by “setting out a detailed and 10 thorough summary of the facts and conflicting clinical evidence, stating his interpretation 11 thereof, and making findings.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citing 12 Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). 13 A. Dr. Tuttle 14 Dr. Tuttle completed a physician statement for Plaintiff in June 2015 and February 2016.

15 See AR 1502-07. In both statements, Dr. Tuttle found that Plaintiff is unable to sit or stand for 16 periods longer than 15 minutes without a break and Plaintiff needs to be able to take a break 17 lying down. AR 1503, 1506. 18 The ALJ rejected Dr. Tuttle’s opinion, finding it (1) conclusory and temporary, (2) 19 inconsistent with the overall medical evidence, and (3) inconsistent with Plaintiff’s activities. See 20 AR 32-33. 21 With respect to the ALJ’s first reason, an ALJ can reject a medical opinion “if that 22 opinion is brief, conclusory, and inadequately supported by clinical findings.” Batson v. Comm'r 23 of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). However, the ALJ cannot do so

24 1 without considering its context in relation to the medical source’s treatment own 2 notes. See Burrell v. Colvin, 775 F.3d 1133, 1140 (9th Cir. 2014). Plaintiff’s medical record 3 included several of Dr. Tuttle’s treatment notes. See AR 917-922, 925-927, 930, 995, 1061, 4 1070, 1072, 1075. Before the ALJ could reject Dr. Tuttle’s opinion for being conclusory, the

5 ALJ was required to consider the findings of these treatment notes. As the ALJ makes no 6 reference to Dr. Tuttle’s own notes, it appears the ALJ rejected her opinion based solely on the 7 statements she provided in the questionnaire. See AR 32-33. Because the ALJ’s reason finding 8 that Dr. Tuttle’s opinion was conclusory and temporary was not supported by substantial 9 evidence, the ALJ erred in rejecting her opinion for this reason. 10 But, on the second reason, the ALJ did not err in rejecting Dr. Tuttle’s opinion for its 11 inconsistency with the rest of the overall medical evidence. See Batson, 359 F.3d at 1195 12 (holding that a treating physician’s opinion may properly be rejected where it is contradicted by 13 other medical evidence in the record). Here, the ALJ found Plaintiff’s medical record largely 14 showed that Plaintiff “recovered well from her surgeries and her physical examinations revealed

15 unremarkable musculoskeletal and neurological findings.” AR 33. In the cited evidence, Plaintiff 16 continuously reported doing well and feeling better after her surgeries. See AR 690, 1070, 1284, 17 1640, 1615. In some of the treatment notes, she reported that due to her improvements after 18 surgery, she was able to be more active and expressed wanting to increase the frequency of her 19 exercises. AR 1292, 1294, 1540. Plaintiff was also often observed as being able to sit and stand 20 without pain, and that her back, ankle, left leg, and knees had improved. AR 829, 848, 854, 927. 21 Considering that much of the medical evidence the ALJ identified showed improvements with 22 Plaintiff’s medical conditions after her surgery, the ALJ’s finding that Dr. Tuttle’s opinion is 23

24 1 inconsistent with the objective medical evidence is supported by substantial evidence. 2 Accordingly, the Court finds the ALJ did not err in rejecting Dr. Tuttle’s opinion for this reason. 3 Because the ALJ has provided at least one valid reason to reject Dr. Tuttle’s opinion, the 4 Court finds the ALJ’s error in rejecting her opinion for being conclusory harmless. See

5 Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (including an 6 erroneous reason among other reasons to discount a claimant’s credibility does not negate the 7 validity of the overall credibility determination and is at most harmless error where an ALJ 8 provides other reasons that are supported by substantial evidence). Additionally, the Court need 9 not assess further whether the third reason the ALJ provided is erroneous. Even assuming that it 10 is insufficient, the error would be considered harmless as well. See id. 11 B. Amanda Kleck, MA, MHP, LMHCA 12 On August 24, 2017, Ms. Kleck completed a mental impairment questionnaire about 13 plaintiff’s ability to perform work-related activities on a day-to-day basis. See AR 1496-1500. 14 Ms. Kleck found that Plaintiff would be unable to carry out very short simple

15 instructions; understand and remember detailed instructions; carry out detailed instructions; 16 maintain socially appropriate behavior; and interact appropriately with the general public for five 17 percent of the time during a regular workday. AR 1495. She found Plaintiff would be unable to 18 sustain an ordinary routine without special supervision; work in coordination or proximity to 19 others; and ask simple questions for 10 percent of the time during a regular workday. Id. She also 20 found that Plaintiff would be unable to deal with normal work stress and set realistic goals for 15 21 percent of the time during a regular workday. Id. Finally, she found Plaintiff would be unable to 22 remember work-like procedures; maintain attention for two-hour segments; maintain regular 23 attendance, accept instructions and respond appropriately to criticism; use public transportation;

24 1 deal with stress; and complete a normal workday/workweek without interruptions from 2 psychologically based symptoms for 20 percent of the time during a regular workday. 3 The ALJ gave Ms. Kleck’s opinion “little weight,” finding it (1) inconsistent with the 4 overall medical evidence and (2) Plaintiff’s activities of daily living. AR 34.

5 Under the regulations applicable to this case, “only ‘acceptable medical sources’ can 6 [provide] medical opinions [and] only ‘acceptable medical sources’ can be considered treating 7 sources.” See Social Security Ruling (“SSR”) 06-03p. But there are “other sources,” such as 8 counselors, who are considered other medical sources. See 20 C.F.R. § 404.1527(f)(1). See also 9 Turner v. Comm'r of Soc. Sec., 613 F.3d 1217, 1223-24 (9th Cir. 2010); SSR 06–3p. Evidence 10 from “other medical sources” may be discounted if, as with evidence from lay witnesses in 11 general, the ALJ “gives reasons germane to each [source] for doing so.” Molina v. Astrue, 674 12 F.3d 1104, 1111 (9th Cir. 2012) (citations omitted). 13 With regards to the ALJ’s first reason, an ALJ may reject lay witness testimony if it is 14 inconsistent with the overall medical evidence. See Bayliss v. Barnhart, 427 F.3d 1211, 1218

15 (9th Cir. 2005); Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001). Here, the ALJ specifically 16 found that the medical evidence showed Plaintiff demonstrated intact cognitive functioning and 17 that her symptoms were largely situational and well managed with medications. AR 34. The 18 cited evidence includes a neurological examination showing Plaintiff had normal memory, 19 language, and fund of knowledge, and Plaintiff was able to follow complex, multi-step and cross 20 midline commands. AR 970. Notably, the examination included the observation that 21 “[Plaintiff’s] neurocognitive and neurological examinations are completely normal.” AR 971. 22 The record also shows Plaintiff’s mood was often stable, she responded well to interventions, 23 and that she reported feeling better mentally from her medication or after seeing a psychiatrist.

24 1 AR 921, 931, 1041, 1064, 1393, 1350. Finally, the record shows Plaintiff’s depression was 2 reasonably managed, and her mental symptoms were often triggered by stress related to her 3 divorce, her ex-husband, and her relationship with her sons. AR 915, 921, 923, 931, 1346, 1352. 4 Given the medical evidence showing Plaintiff’s mental impairments were often caused by

5 stressors and well managed by treatment, the ALJ’s finding that Ms. Kleck’s opinion is 6 inconsistent with the medical evidence is supported by substantial evidence. Accordingly, the 7 Court finds the ALJ gave a germane reason to reject Ms. Kleck’s opinion and therefore did not 8 err. 9 In sum, Plaintiff has failed to establish error in the ALJ’s assessment of the medical 10 opinion evidence. However, as explained in the next section, this case must be remanded on 11 other grounds and the ALJ may reconsider the medical evidence to the extent necessary on 12 remand. 13 II. Whether Plaintiff’s Case Was Adjudicated by a Properly Appointed ALJ 14 ALJ Ross initially presided over Plaintiff’s case in 2017 and issued an unfavorable

15 decision in May 2018. See AR 44-82, 162-181. The following month, the Supreme Court held in 16 Lucia v. S.E.C., 138 S. Ct. 2044 (2018), that the Security Exchange Commission’s (SEC) staff 17 appointment of SEC ALJs violated the Appointments Clause of the Constitution because only 18 the President or the heads of agencies could appoint such positions. The Supreme Court also held 19 that “the ‘appropriate’ remedy for an adjudication tainted with an appointments violation is a 20 new ‘hearing before a properly appointed’ official” who has not already heard the case and ruled 21 on the merits. See id. at 2055. 22 In response to Lucia, the Social Security Administration (“SSA”) Acting Commissioner 23 preemptively ratified the appointments of all SSA ALJs. See SSR 19-1p. Thereafter, the Appeals

24 1 Council issued an order vacating ALJ Ross’s first decision and remanded Plaintiff’s case for 2 further proceedings. AR 1-5. ALJ Ross held a second hearing for Plaintiff’s case in May 2020 3 and issued a second unfavorable decision in November 2020. AR 1-5, 12-43. Then, in April 4 2021, the Supreme Court applied Lucia’s holding in Carr v. Saul, 141 S. Ct. 1352, 1356-62

5 (2021), finding that, like the SEC ALJs in Lucia, SSA ALJs were unconstitutionally appointed 6 and Social Security claimants wanting to raise “[Appointments Clause] issues for the first time in 7 federal court are not untimely in doing so.” 8 Plaintiff contends that based on the Supreme Court’s decision in Lucia, after ALJ Ross’s 9 first decision was vacated and her case was remanded for further proceedings by the Appeals 10 Council, ALJ Ross should not have been the one to adjudicate her case again. See Dkt. 10, pp. 11 17-18. But because the Commissioner remanded the case back to ALJ Ross, Plaintiff asks that 12 this Court should remand her case for a de novo hearing with a different and properly appointed 13 ALJ. See id. 14 In contrast, the Commissioner contends Lucia does not apply to this case because ALJ

15 Ross had been properly appointed prior to Plaintiff’s second hearing. See Dkt. 11, pp. 2-3. The 16 Commissioner maintains Lucia did not hold that “any time an ALJ was involved in a matter prior 17 to ratification, that ALJ is forever barred from participating later.” See id., p. 4. 18 In James R. v. Comm’r of Soc. Security, No. C20-5632-SKV, 2021 WL 4520560, at *6-7 19 (W.D. Wash. Oct. 4, 2021), this Court rejected the argument the Commissioner essentially 20 makes now. This Court explained that Lucia had “two prerequisites” to properly remedy an 21 “‘adjudication tainted with an appointments violation.’” See id. (quoting Lucia, 128 S. Ct. at 22 2055). First, a claimant must receive a new hearing before a properly appointed official, and 23 second, the properly appointed official cannot be the same ALJ who initially heard the

24 1 claimant’s case, even if that ALJ has since received a proper appointment since the initial 2 hearing, or will receive a proper appointment in the future. See id. 3 Here, the Commissioner correctly points out that ALJ Ross was already properly 4 appointed by the time he presided over Plaintiff’s second hearing. However, according to Lucia

5 and this Court’s reading of that case, Plaintiff’s case on remand should have been heard not only 6 by a properly appointed ALJ, but also a different ALJ. See id. Instead, Plaintiff’s case was 7 remanded back to ALJ Ross, which effectively “continued—rather than cured—the 8 constitutional violation attendant to the first decision.” See id. 9 The Commissioner also maintains Carr does not apply to this case because the claimants 10 in that case were challenging the decision of an improperly appointed ALJ, whereas here, the 11 decision at issue was rendered by a properly appointed ALJ. See Dkt. 11, pp. 3-4. The 12 Commissioner cites several cases supporting the position that there is no Appointments Clause 13 violation when the same ALJ hears a claimant’s case prior to and after his or her appointment’s 14 ratification. See Dkt. 11, pp. 3-4. But again, the Commissioner’s position conflicts with this

15 Court’s interpretation of Lucia, as well as with the majority of courts that have addressed this 16 issue and similarly concluded that an ALJ’s proper appointment after the fact does not remedy 17 his or her earlier improper adjudication. See Misty D. v. Kijakazi, No. 3:18-CV-206, 2022 WL 18 195066, at *3 (N.D.N.Y. Jan. 21, 2022); Cuminale v. Saul, No. 20-61004-CIV, 2021 WL 19 6010499, at *3 (S.D. Fla. Oct. 15, 2021), adopted, 2021 WL 5409967 (S.D. Fla. Nov. 19, 20 2021); Mary D. v. Kijakazi, No. 3:20-CV-656 (RAR), 2021 WL 3910003, at *10-11 (D. Conn. 21 Sept. 1, 2021); Welch v. Comm’r, SSA, No. 2:20-CV-1795, 2021 WL 1884062, at *3-5 (S.D. 22 Ohio May 11, 2021), adopted, 2021 WL 2142805 (S.D. Ohio May 26, 2021). See also SSR 19- 23 1p (“In cases in which the [improperly appointed] ALJ made a decision, the Appeals Council

24 1 will conduct a new and independent review of the claims file and either remand the case to an 2 ALJ other than the ALJ who issued the decision under review or issue its own new decision . . . .” 3 (emphasis added)). 4 The Commissioner further maintains Carr “[does] not relieve a claimant from raising an

5 Appointments Clause claim altogether” and neither Carr nor Lucia “suggests that an 6 Appointments Clause challenge may survive longer than the decision rendered by the improperly 7 appointed ALJ.” See Dkt. 11, pp. 4-5. This argument conflicts with the Supreme Court’s holding 8 that claimants need not “exhaust certain issues in administrative proceedings” and those who 9 raise an Appointments Clause challenge “for the first time in federal court are not untimely in 10 doing so.” Carr, 141 S. Ct. at 1362. The Court, therefore, rejects the Commissioner’s arguments 11 and orders the Commissioner’s final decision be reversed and remanded, with a new hearing be 12 held by a different ALJ. 13 CONCLUSION 14 Based on the foregoing reasons, Defendant’s decision to deny benefits is reversed and

15 this matter is remanded for further proceedings in accordance with the findings contained herein. 16 Dated this 9th day of August, 2022. 17 A 18 David W. Christel United States Magistrate Judge 19 20 21 22 23 24